ST. ALBANS RAID:
: INVESTIGATION INTO THE CHARGES
‘ AGAINST
' LIEUT. BENNETT H. YOUNG AND COMMAND,
bi FOR THEIR ACTS AT ST. ALBANS, VT,
: On THE 19TH OcToBER, 1864.
BEING A COMPLETE AND AUTHENTIC REPORT OF ,ALL THE PRO-
CEEDINGS ON THE DEMAND OF THE UNITED STATES FOR
THEIR EXTRADITION, UNDER TIIE ASHBURTON TREATY.
a BEFORE
JUDGE COURSOL, J.S.P.,
AND THE
HON. MR. JUSTICE SMITH, J.S.C.
WITH THE ARGUMENTS OF COUNSEL AND THE OPINIONS OF THE JUDGES REVISED
BY THEMSELVES.
COMPILED BY .
L. N. BENJAMIN, B.C.L.
Montreal :
PRINTED BY JOHN LOVELL, ST. NICHOLAS STREET.
1865:
i
‘ i
¥
A oe al
%
a rE ee
PREFACE.
THE magnitude of the interests involved in the St. Albans Case,
and the importance of the questions which arose during its dis-
cussion, have appeared to me such as to justify the publication of
a complete report of the proceedings ; and in preparing it accord-
ingly, I have been indebted to the eminent Counse: engaged on
both sides for such a revision of the reports of their arguments, as
enables me to be certain of their substantial correctness.
Before going to press, documents arrived from England which
kg appeared to sustain the correctness of two of the most important
of the judgments rendered in the case. I have, therefore, added
a
them as an appendix.
L. N. B.
MowntreaL, 17th April, 1865.
ERRATUM.
Page J, line 8, instead of ‘‘ with felony,” read “ with suspicion of felony.”
of felony.”
PRR CRE Sepa IE EIST 6 Scie a
ST, ALBANS RAID.
Before Mr. Justice BApGauey.
Mr. Kerr applied for a writ of habeas corpus to bring before his
Honor, William H. Hutchinson, alleged to be then in gaol upon the
following commitment :—
PROVINCE OF CANADA, 2 ) 1 WT
District of Montreal, § POLICE OFFICE.
To the keeper of the Common Gaol of the said District, greeting :
[t.8.] Whereas W. H. Hutchinson of the Parish of Montreal, in
“4 the said District, laborer, stands charged upon oath with
felony. ‘These are therefore to authorize and command you to
receive into your custody the body of the said W. H. Hutchinson,
and him safely keep for examination.
Given under my hand and seal at Montreal, this twenty-seventh
day of October, one thousand eight hundred and sixty-four, in
the twenty-eighth year of Her Majesty’s reign.
(Signed) J. P. SEXTON,
Recorder.
And also for a writ of certiorari to bring up the information upon
which the commitment issued, which was sworn to be of the follow-
ing purport :
PROVINCE OF CAN. .:,
District of Montreal, Git ort POLICE OFFICE.
of Montreal.
The information and complaint of Guillaume Lamothe, of the city
of Montreal, in the District of Montreal, Esquire, chief of police,
taken upon oath, this twenty-seventh day of October, one thousand
eight hundred and sixty-four, at the Police Office, in the city of
Montreal, before the undersigned Recorder in and for the city of
Montreal, who saith: Upon the twenty-fourth day of October instant,
at the said city of Montreal, between the hours of six and eight of
the clock in the afternoon, I arrested a person, who has since given
his name as W. H. Hutchinson, upon suspicion of his having com-
mitted a felony at St. Albans, in the State of Vermont, one ‘of the
United States of America. Upon the person of the said Hutchin-
A
= ae —
ee A
ne ee ae
petite t=
Sirti aot
aa ait
———
ET 3 Se
son, who is now a prisoner in my custody, I found after his said
arrest ten thousand dollars of the Franklin County bank bills,
said bank being situate in St. Albans, in the State of Vermont,
ene of the United States of America, and two loaded revolvers.
And Lhave reason to believe that the said sum of ten thousand
dollars was feloniously stolen by the said Ifutchinson, or by others
with whom he was acting in concert.
Wherefore T pray for justice, and have signed
GUILLAUME LAMOTIIE,
Chief of Police.
woe. Defore me, at Montreal, this )
27th Octoher, 164.
J.P. Sexton, Recorder.
Je. Herr opened two principal grounds of objection to the com-
hnvment,
i. That it contained no charge of any offence for which the
prisoner could be committed; ‘suspicion of felony” not being
such a charze.
2. That the warrant of commitment contained no limit as to the
thie daring which the prisoner was to remain in confinement :
thoush the time for which he could be remanded was expressly
limited by the statute ; and though the text writers laid it down as
a rae that the warrant should declare the limit; and though
the form contained in the schedule to the statute, and the forms
civen in the books were all so framed as to limit the time.
Mr, Abbott, @. C., followed on the same side.
The fact that the information contained no statement that war-
ranted a suspicion of feleny under the law of Canada, was also
insisted on,
My. Johnson, Q. C., on behalf of the Crown, opposed the appli-
cauon, on the ground that the warrant was sufficient, and that the
information disclosed a sufficient ground for the imprisonment, and
further on the ground that being remanded for examination only
the proceedings against the prisoner should not be interfered with.
Mr. Devlin, on behalf of the U. 8. authorities, followed on the
same side.
His Honor took time to consider; and at 2 P. M. the same day,
rendered the following judgment :—
The warrant of commitment charges the prisoner with suspzczon of
Felony, and orders his commitment for evamination. Objections are
made to both the generality of the charge and the unlimited remand.
Now it is not necessary that the offence should be described with
the nicety and technical precision of an indictment, but the prisoner
should be charged with some legally defined and well known
his said
ik bills,
ermont,
volvers.
housand
y others
LK,
olice.
the com-
vhich the
ot being
as to the
finement :
expressly
+ down as
id though
the forms
that war-
was also
the appli-
that the
nent, and
tion only
‘ed with.
d on the
hme day,
picion of
tions are
remand.
bed with
prisoner
known
i REL IEA ES CNS Seas
vitence for which he would be subje eted to crim ul procee sdinus
ihe 5S
either by indictment or othe WISC, and that spec ific offence cannot
’ >]
be include d under a ge meral term which compe ndiously covers a
oO
great variety of criminal offences. The term fe ‘ony includes a
BUMpOr of crimes ranging between treason and larceny ; and Hanes
it is not sufficient simply. to designate the offence by the name of
the class of offences to which the m: iwistrate may find or judge it
to belony ; and it is undoubtedly the recewed opinion the i: : ae |
wnitment | for felony in general Without showing the species —
good. ‘The reason given for requiring certainty is plain enough, to
enable the judge applied to for the habeas corpus which is in tl
nature of a writ of error, to determine whether the canis t :
erroncous or not, otherwise the power of Courts and Judges id .
the law would be seriously abridged. A commitment, creretoke, in
the absence of any statutory provisions prescribing its form: id
contents does not sufficiently state the offence by simply des ae
ting it by the class of crimes to which the anny 4 mavist ils
may consider it to belong; it should state the facts ch Baer ? . :
stitute the offence with sufficient particularity to enable the ¢ ( mes
or Judge on Habeas Corpus, to determine what particular on et
charged against the prisoner: if commitment fail to a this, an
prisoner ought to be discharged from it: this is the law and | the
decision 1s “explained and enforced by Mr. Ilurd i Avie of
jurist, who has treated, ea professo, the subject of the eat of faheas
corpus. Surely if the speciality of the offence is so strongl ie
quired in commitments for actual offences, how much a .
necessary and essential is it for offences merely suspected, sa
this case, suspicion of felony. The charge itself aenely: :
complete ‘and untechnical, being not alone general i in its expr hes
but without any fact to show its application in any meade eae
prisoner ; in this respect the commitment 1s clearly erroneous .
The second objection has reference to the generality of the order
zs hanes ; - age is remanded for eau ein but ait
ng when or where. is true i :
remand for examination from oe pak sae are shee
that discretion is not unlimited, it is a legal Seon te Wee
and times provided for by the statute : that time, therefore ‘a wuld
have been stated. The justice, as stated in the book oes
fail to state in his warrant of remand the time qd piety Wl ich
a easel is again to be brought up, and our Provincial Statutes
p ainly pres provides for this and assists the magistrate with a
orm in this particular, leaving blanks for time and place, which
the magistrate shall fill up. It i
re 5 1S fa] . ;
ieperavpnine p uscless to say more upon this
ha
Lhese two objections are forma! against the face of the commit-
ment, and, to my mind, render it bad and defective. I have con-
sidered this commitment simply as any other, issued in the course
of ordinary proceedings before our magistrates, upon commitments
for local offences, cognizable by provincial magistrates under the
provisions of our i6ci al laws, and should not have advanced beyond
the commitment itself but for the urgency of the counsel against
the prisoner in directing my attention to the information, with the
view of supple menting the formal defects of the commitment by the
other merits of the information. ‘This latter document informs the
magistrate that the informant, the police officer, had arrested the
prisoner on suspicion of having committed a felony at St. Albans,
in the State of Vermont, one of the U. 8. of America, &e. This
document is exceedingly louse and defective, and does not justify
the charge set out in the commitment, which in this case did not
issue e mero motu of the magistr ate, but upon this information.
Now the law clearly requires hat the commitment shall state some
good cause certain, showing substantially a criminal matter over
which the committing magistrate has jurisdiction, and for which the
former may be legally committed, and that criminal matter must
he stated with cer tainty to distinguish it from other offences. None
of this can be extracted from the information. Viewed as informa-
tion of a crime committed in this Province, it wants every legal in-
gredient to give it effect; taken as the information of a erime
committed in the United ‘States, it is plainly one for which the
committing magistrate could have no jurisdiction, being done in a
foreign country, and, moreover, not in the category of offences for
which extradition is allowed under the treaty.
It has been urged that the allowance of the habeas corpus will
interfere with the course of justice. The writ, however, cannot be
promoted or impeded on that account, if there is no lew: ul commit-
ment to detain the prisoner, as in this case. Even in the course of
the examination of a prisoner before a magistrate, where there is
a special charge en regle, it is quite competent for a magistrate to
admit the prisoner to bail dn the meantime ; and this does not pre-
vent the continuance of the examination, which would go on,
although the prisoner is at large under his bail bonds; or the
magistrate may even prevent him to go at large without bail, and
still the examination would not be interfered with. Now, this
statute allowing the remand, does not certainly interfere with the
allowance of the habeas corpus, and as cert aly, upon a defective
commitment like the present, the allowance of the writ cannot be
legally refused.
Writ granted returnable instanter.
The following i is the gaolor’s return to the writ of habeas
COrpUs ¢
Sess Mea SE Se ag AS
Rh TH mm tee DH TH A. OTK De tas
oO
ave COn-
e course
nitments
ider the
| beyond
| against
with the
it by the
orms the
sted the
Albans,
ce. ‘This
it justify
- did not
yrmation.
tate some
tter over
vhich the
tter must
3. None
; informa-
| legal in-
a crime
vhich the
one in a
ences for
‘pus will
sannot be
commit-
course of
there 13
istrate to
not pre-
go on,
or the
bail, and
ow, this
with the
letective
nnot be
habeas
Se ea RRR amistad act
PROVINCE QF CANADA, ?
District of Montreal, y
I, Louis Payette, keeper of Her Majesty’s Common Gaol,
in the city and ‘District of Montreal, in the Province of Canada
aforesaid, do hereby certify and return to our Sovereign Lady the
(Jucen that before the coming of the annexed writ to me directed,
to wit, on the 27th and 29th days of October, one thousand eight
hundred and sixty-four, the body of William IL. Hutchinson therein
named, was committed into the said Gaol of our said Lady the
Queen, under ny custody, by virtue of two warrants under the hand
and seal of J. P, Sexton, Recorder of the city of Montreal, and
Charles J. Coursol, Nsquire, Judge of the Sessions of the Peace im
and for the city of Montreal, which said warrants are in the words
following, to wit :
PGE PH GAS, POMCE OFFICE
I'o tho kéenot of ie Common Gaol of the said District, greet-
_ 4 ing: Whereas Willam If. Hutchinson, of the parish of
[1.8.] Montreal, i in the said District, laborer, stands charged upon
oath with suspicion of felony : These are, therefore, to authorize
and command you to receive into your custody thie body of the
said William IL. Hutchinson and him safely keep for examination.
Given under my hand and seal at Montreal, this twenty-seventh
day of October, one thousand eight hundred and sixty-four, in the
twenty-eighth year of ILer Majesty’ sreign. | . .
(Signed) J.P. SEXTON,
Recorder.
-ROVINCE OF CANADA, ? aha ARCS
Bai os of M mtreal, 5 POLIC KN OFFIC K.
To all or any of the Constables or other peace officers in the
[L.s.] said District of Montreal, and to the keeper of the Common
; Gaol of the said city of Montreal, in the said District of
Montreal, greeting: Whereas William H. Iutchinson, late of the
town of St. Albans, in the State of Vermont, one of the United
States of America, laborer, now in the city of Montreal, was this
day charged before me, Charles Joseph Coursol, Esquire, Judge of
the Sessions of the Peace, in and for the city of Montreal, on “oath
of Marcus Wells Beardsley and others, for that he the said William
H. Ifutchinson on the nineteenth day of October instant, at the
town of St. Albans, in the State of Vermont, one of the United
States of America, being then and there armed with a certain offen-
sive weapon and instrument, to wit, a pistol, commonly called a
revolver, loaded with powder and balls, and capped, in and upon
one Marcus Wells Beardsley feloniously did make an assault, and
eT re
Seg
roe
~~
6
him, the said Marcus Wells Beardsley, in bodily fear and danger
of his life, then and there did put, anda certain sum of money, to
wit, to the amount of seventy-six thousand dollars current money
of the said United States of America, and of the value of seventy-
six thousand dollars, current money aforesaid, of the moneys and
property of the F ranklin County bank, at St. Albans aforesaid, a
body corporate, constituted and recognized by the laws of the said
State of Vermont, from the person, custody and possession and
against the will of the said Marcus Wells Beardsley, and in his
presence then and there feloniously and violently did steal, take
and carry awey, against the form of the statutes of the said State
of Vermont, in such case made and provided, and against the peace
and dignity of said State. These are therefore, to command you
the said Constable or Peace Officers or any of you, to take the said
William TH. Hutchinson and him safely convey to the Common Gaol
at the city of Montreal aforesaid, and there deliver him to the
keeper thereof, together with this precept ; and I do hereby com-
mand vou the said. keeper of the said Common Gaol to receive the
said William If. Hutchinson into your custody in the said Common
Gaol, and there safely to keep him until he shall be brought before
me for the purpose of an examination upon oath of any person or
persons touching the truth of the said charge, in conformity with
the provision of the Statutes made to give effect to the Treaty
between Her Majesty the Queen and the United States of America,
for the apprehension and surrender of certain offenders, on the
second day of November next.
Given under my hand and seal, this twenty-ninth day of October,
in the year of our Lord one thousand eight hundred and sixty-four,
at the said city of Montreal, in the District aforesaid.
(Signed) CHAS. J. COURSOL, J.8. P.
And that this is the cause and the only cause of the capture.
commitment and detention of the said Wiliam H. Hutchinson in
Her Majesty’s Gaol aforesaid, the body of which said Wilham H.
Hutchinson [ have here now as by writ it is commanded me.
Attested at the city of Montreal, in the said District of Mon-
treal, in the said Province of Canada, this twenty-ninth day of
October, in the twenty-eighth year of Her Majesty’s reign, and in
the year of Our Lord one thousand eight hundred and sixty-four.
(Signed) LOUIS PAYE ITTE, Gaoler.
By this return it appears that a subseqent warrant of commit-
ment had been made out—and time till the following morning was
granted to take communication of it. On the following day, before
JuDGE BADGLEY, in Chambers,
Bae LHI
Sic
ee aya
te
CoG
Susskeaies
ee pad oeeY
Ga Ne A RAR ERS aa Sart A
danger
oney, to
t money
seventy-
eys and
esaid, a
the said
ion and
1 in his
ral, take
id State
he peace
und you
the said
non Gaol
1 to the
by com-
eive the
Common
it before
erson or
lity with
Treaty
merica,
on the
Scie Sab iD MR LIMES ee) oto
es
Sas
ctober,
ty-four,
ccnp eiteab ea esas Soiled entiacenss
day of
and in
Hon. Mr. Abbott, Q. C., on behalf of — Hutchinson, stated
that the return which now appeared before the Judge contained not
only the original commitment of the Recorder, but also a subsequent
one; that the argument respecting the Recorder’s commitment
having disclosed the defects,—the second was prepared with the
view of supplementing. the first. The commitment of the Recorder
was rendered inadequate by the omission to state the day, the place
and the time when the prisoner should be brought up for examina-
tion. The attempt to cure the defect in the other warrant consisted
in placing at the end of the description of the statute in the warrant
the words ‘on the second day of November next,” making the
commitment read to the effect that the jailer was ordered to return
the prisoner for examination on that day according to the terms of
the statute passed for such and such purposes, on the second of
November. As the return set forth the second commitment, it was
necessary to show now—and he was ready to do so, that it was
insufficient. The course of proceedings adopted in the subterranean
regions of the police office, was very extraordinary, for as fast as
one ecmmitment was found fault with and was on the point of being
quashed by his Honor the Judge, another was submitted in order
that the accused might be kept i in jail from day to day, till the
learned gentlemen who drew up the first commitment should learn
from the j prisoner's counsel how to prepare one in a legal and valid
manner. As long as the clerk of the crown, acting apparently j in
the capacity of clerk of the magistrate, continued to furnish aff-
davits and commitments, he should be careful how he managed the
business, and not illegally infringe the liberty of individuals. The
Judge, howev er, would doubtless take good care that personal free-
dom should not suffer from any contravention or overstraining of the
law.
Mr. Carter objected to being styled clerk of the magistrate.
He was not such, and had never ‘acted in that capacity.
Hon. Mr. Abbott observed that all he could say was this, that
when he arrived at St. Johns, as counsel for the prisoners, he found
the learned gentleman who was clork of the erown for the District
of Montreal, ° drawing up informations, preparing commitments, and
acting in the capacity of magistrate’s clerk in the District of Iber-
ville. These were the duties of a magistrate’s clerk, not those of
clerk of the crown for the District oft Montreal.
Mr. Carter said that if the learned counsel wanted to know in
what capacity he acted, he would tell that gentleman. He would
tell him that he received a telegram from Hon. Mr. Car tier, desiring
him to go to St. Johns to assist Jud ge Coursol in carrying on this
investiga ation.
Hon, Mr, Abbott said that whether the learned gentleman had
Sees ROK RP BOIS - spo met
8
acted at the instance of the attorney-general or no, the task he
was called upon to perform was precisely that of clerk to the
magistrate. As to his being sent there by the attorney-general,
he was surprised to hear it ; “for it was the first time in the history
of constitutional government that a free government had been
found assisting foreigners in attempting to effect the extradition of
persons found within its lines, those persons imtending no injury to
the country in which they had taken refuge, and observing the laws
of the country under whose protection they had placed themselves ;
and it was a very strange mode of action on the part of the govern-
ment to send salaried officials ¢ away from the duties of their “offices,
for any such purpose.—The learned counsel then went into the
merits of the case, and assuming that the commitment made out by
Mr. Sexton was quashed, shewed that the statute authorizing extra-
dition clearly pointed out the course to be pursued. A magistrate
was bound, on information being laid before him, to issue his warrant
for the arrest of the party accused, and have him brought up for
examination. The magistrate then had a right to examine into the
facts, and hear the evidence, which, if satisfactory, would authorize
him to send the accused to jail, to be dealt with according to the
terms of the statute, and to be given up on the issue of the gover-
nor-general’s warrant. But this particular warrant did not show
that the prisoner had ever been brought before a magistrate ; it was
simply a warrant sending him to jail, instead of having him brought
before the proper authority to be dealt with according to law. In
this case the terms of the statute had not been followed ; the
magistrate had exceeded his jurisdiction, and his proceedings were
absolutely null. The learned counsel then went on to show that
supposing the magistrate had power to remand the prisoner for
examination, he was bound in the commitment remanding him, to
order the jailor to bring him back for such examination, at such time
as in his discretion he considered best, but within the limit fixed by
the statute. But in the matter of this particular warrant, instead
of fixing the time in that part of the warrant which related to the
jailer, nothing at all was said about time ; but the jailer was merely
ordered to keep the accused in prison for examination, when he
should have been directed to bring him up at a time and place that
should-have been mentioned in the commitment. No such mention
of time and place being made, and the attempt to fix a time was
so clumsily made, that the literal and grammatical meaning of the
words in the warrant. “ the 2nd day of Nov ember,” actually con-
veyed the idea that the statute was made and come into force only
on that day. The warrant was illegal, and the commitment of the
prisoner was the same; and these few words, “ the 2nd day of
November,” were interpolated at the end of the warrant to give
)
sk he
o the
neral,
istory
been
ion of
ury to
c laws
elves ;
overn-
offices,
ito the
out by
extra-
ristrate
yarrant
up for
nto the
thorize
- to the
gover-
yt show
; it was
brought
w. In
13 the
rs were
bw. that
mer for
him, to
h time
xed by
instead
to the
merely
i1en he
ce that
ention
me was
of the
y con-
e only
of the
day of
0 give
it a validity it did not possess. Supposing the mnrenpoletion to
mean that the examination was to take place on the 2nd day of
November, there was no order to the jailer to bring him up on that
day ; he was ordered simply to hold the accused in custody. ‘The
learned gentleman then referred to the authorities cited on Satur-
day in reference to Mr. Sexton’s commitment, showing the neces-
sity of stating in the warrant the time and place when the prisoner
should be brought up for examination.
After some discussion,
His Honor said the first question was the irregularity of the
whole proceeding. If the gentlemen opposed to Mr. Abbott had
waited till they saw if the prisoner were discharged on the first
warrant, then they might have arrested him on the 2nd, and the
juestion of habeas corpus would have been unembarrassed. Lad
those gentlemen taken this step, the whole thing would have been
more satisfactory. ‘The jailor, probably could not help having the
second commitment in his possession, but the whole proceeding was
very irregular.
After some further argument,
Mr. Johnson, Y. C., said he desired to have time to argue the
validity of the second commitment. If this right were conceded,
he was prepared to go on at once.
Consent having been accorded to Mr. Johnson, the parties were
heard on the validity of the commitment.
Mr. Carter came forward and desired to be heard on behalf of
the police magistrate.
Hon. Mr. Abbott objected on the ground that the question of
the got of the commitment was a matter for the Judge alone.
Mr. Carter renewed his application to be heard.
Hon. Mr. Abbott said that the magistrate could not be repre-
sented by counsel. Further the statute laid it down that a clerk
of the crown was prevented from acting as advocate, counsel, soli-
citor or proctor, in any case whatever.
His Honor said that if Mr. Carter came here to represent the
Judge of the peace, he could not be heard.
Mr. Carter said he had a right to be heard.
The Judge of the peace came forward and said he had no desire
to have counsel appear on his behalf; for if any thing had to be
said respecting the return he could say it himself.
Mr. Devlin said he was not prepared to discuss the validity of
the second commitment, as he had not had sufficient notice.
Hon. Mr. Abbott replied that Mr. Devlin was present on Satur-
day, when he asked till Monday morning to consider the matter ;
his request was granted. He had had ample time.
JupGE BapGLeEy intimated he would complete the hearing of
the case at two o’clock.
10
At two o’clock before His Honor Jupce Bapa ey,
Mr. Kerr, on behalf of the prisoner, said that the whole question
Ri
was, whether the commitment set out in the return of the jailer
was a valid one or not. This was the only question on which His :
TTonor had to pronounce. i
Mr. Devlin said he was not prepared to argue the validity of the 3
warrant or commitment to-day, and as far as was in his power he -
would protest against this mode of dealing with a question of this
importance. Before the second warrant could be taken up the
See Siok
prisoner’s counsel must come before His Honor with a second peti- Ft
{ tion for a writ of habeas corpus. i
} Mr. Johnson, on behalf of the Crown, said he did not see why re
the Judge should grant an order for a discharge, when there was 4
no petition. iH
His Honor observed that it was plain enough the habeas corpus
and not the petition constituted the record. ‘The application made
by Mr. Devlin, in the interest of various parties, to have time to
argue the second commitment involved was deserving of considera-
tion, for the questions which might arise upon it a very large
branch of what might be called international law. This was a
a matter of very areat importance, and he would suggest to the
counsel on all sides, for the purpose of avoiding further “discussion,
that the second commitment should not now be taken up. The
whole proceeding had been very irregular. The man might have
been discharged on the first warrant, and before he left the room
been arrested on the second, but instead of this both warrants had
been mixed up in a very irregular manner. ‘The zeal of the prose-
cutors had outrun their discretion, and the whole thing was a com-
plete series of blunders from first to last, and this evidently to
make confusion. It would have been better in order to simplify
the thing if the first warrant had been disposed of, and the second whic
commitment could then have come up substantially, anl the ques- : to tl
tions involved been fairly discussed. He would suggest to the I
| gentlemen on both sides to let judgment go on the first warrant, spea
reserving their right to take substantial issue on the second. a this
Hon. Mr, Abbott observed that to-morrow was a holiday, and : the
the prisoner would be kept two days in jail, during which time any abou
| number of applications might be made against him. The object of proc
| prisoner’s counsel was to have him released from illegal detention. : dela:
Judge Badgley—The whole thing that comes up now is the suffi- Sessi
| ciency or insufficiency of the return; and the question comes up Ji
on formal or technical grounds. The Judge only has to look on read
the face of the warrant to see that it bears out a sufficient commit- M
ment. I think it does bear out a sufficient commitment to enable Jr
the Court to remand the prisoner for the present. hat return is
sufficient.
estion
jailer
-h His
of the
wer he
of this
up the
d peti-
ce why
re Was
corpus
n made
time to
isidera-
y large
; was a
to the
ussion,
. The
Iht have
e room
nts had
prose-
a com-
ntly to
simplify
second
e ques~-
to the
arrant,
y, and
e any
pject of
ention.
ne suffi-
nes up
look on
ommit-
enable
turn is
11
After some further discussion the warrant issued by the Recorder
was pronounced by the Court to be illegal, null and void; and
Friday was appointed for hearing the application for the discharge of
the prixwner, from the warrant issued by the Judge of the sessions
of the peace. ‘The prisoner remains in jail in the meantime.
Motion of Writ of ‘‘ Habeas Corpus.”
COURT OF QUEEN’S BENCH, SS
In Chambers. (Before Justices Aytwin, MonpDELET ard
DRUMMOND.)
WepNEsDAY, Nov. 2nd, 1864.
This morning the Court was crowded, to hear the argument and.
decision on motions for a writ of habeas corpus in behalf of the St.
Albans raiders, at present imprisoned in the Montreal jail.
Hon. Mr. Abbott, Q. C.; Mr. Laflamme, Q. C.; and Mr. Kerr
appeared for the prisoners. Mr. Develin, representing the United
States Government, associated with Hon. Mr. Edmonds, of Ver-
mont. Messrs. Johnson, Q. C., and Carter, Q. C., appeared for
the Crown. Messrs. HE A. Sowles and Edson were present in the
interest of the St. Albans banks robbed.
Mr. Kerr presented a petition for a writ of habeas corpus in
behalf of Samuel Eugene Lackey and thirteen other prisoners
concerned in the St. Albans raid.
Mr. Justice Mondelet.—Are all charged with the same offences ?
Mr. Kerr.—Yes.
Judge Mondelet.—With specific offences ?
Mr. Kerr—One offence is murder committed within the jurisdic-
tion of the United States, and the other robbery. The principles
which would apply to those commitments are general and applicable
to the whole.
Mr. Carter said he was clerk of the crown, and had a right to
speak on the present occasion. He would beg to inform the Court that
this was not a final commitment, but one for examination, and that
the prisoners were now before the Judge of the sessions, who was
about going on with the examination of witnesses and other requisite
procedings. The argument for a writ of habeas corpus was actually
delaying the argument about to take place before the Judge of the
sessions.
Judge Aylwin—Asked for the petition, which was handed to and
read by him. He then asked, was there any final commitment ?
Mr. Kerr.—None.
Judge Aylwin.—That is the end of the matter.
Mr. Kerr asked to be heard.
12 .
Judges Aylwin and Drummond, though demurring to the
propriety of such a course, before the prisoners were cxamined,
permitted the Counsel for the latter to proceed.
Mr. Abbott said the point they intended to bring before their
Honors was not one relative to the crimes charged, but applied to
an excessive jurisdiction in this commitment. If the magistrate
exercised excessive jurisdiction, even in a preliminary commitment,
the Court would take notice of it. The statute authorizes a magis-
trate, under certain circumstances, to commit a prisoner for exami-
nation, for a limited period, in his discretion, not exceeding eight
days. Of course, then, if a magistrate committed a prisoner, without
reference to the statute, without limiting the time before examination,
there was an exercise of excessive jurisdiction.
Judge Mondelet asked if the learned gentleman had ever read
or heard of a writ of habeas corpus being applied for while a pre-
liminary investigation was proceeding before the magistrate or any
justice whatever, in order to prevent such examination being com-
pleted. Suppose the prisoners were discharged at this stage, what
security would there be for the community at large. THe did not
allude to these prisoners in particular, as their case must come
before the Court. The Judges were independent of the executive
and every one else, and justice could and would be done the prison-
ers whatever the consequences. But, at the same time, the Court
must take care and act according to the law, both as to tic prisoners
and foreigners interested.
Mr. Abbott said that the law had contemplated every case,
including that of a person brought before a magistrate against whom
there was not sufficient evidence at the moment to warrant a com-
mitment for trial. The defence addmitted that if the prisoners in
this case were properly committed for examination, they could not
interfere. The mode in which the law had provided for that exam-
ination was this: (Cap. 102, sec. 42, Con. Stat. Canada,) “ If
from the absence of the witnesses, or from any other reasonable
cause, it becomes necessary, or advisable to defer the examination,
or further examination of witnesses for any time, the justice or
justices before whom the accused appears, or has been brought up
upon his or their warrant, may, from time to time, remand the party
accused, for such time as by such justice or justices, in their dis-
cretion, may be deemed reasonable, not exceeding eight days at any
one time, to the common jail or house of correction,” ete. If
the power was not conferred by this clause, it was conferred by no
clause at all, so the law very wisely gives to one justice the right of
remanding prisoners for a specified period, but not to keep them there
for ever. ‘The imprisonment was not to exceed eight days at any
one time. ‘These prisoners were committed for examination geveral
a eee
({ues
» the
ined,
their
ied to
strate
ment,
nagis-
»xami-
eight
ithout
ration,
r read
a pre-
or any
x com-
2, what
lid not
t come
ecutive
prison-
Court
isoners
y case,
whom
a com-
ners in
Id not
/exam-
) 6c If
sonable
nation,
ice or
cht up
party
ir dis-
at any
ce Hf
by no
ght of
there
at any
everal
18
days ago, and had not yet been brought up for examination. They
may be confined in this jail for the next twenty years, under the
present warrant. The magistrate had not exercised his discretion
as to the time these prisoners might bekept in jail. Instead of saying
to the jailer, “* You shall detain them for eight days, and then bring
them up,” they were committed for an indefinite period. They
might have been brought up in the interval that had elapsed since
their commitment, but he had no right to commit them fora longer
period than eight days.
Judge Aylwin.—The commitment bears date the 27th of October.
Judge Drummond.—The eight days have not expired. The
magistrate remanded from day to day in general, but the party ag-
erieved, when the eight days expired, if not previously brought up,
might appear and say that the magistrate had exceeded his power.
If the counsel were in that position he could understand it.
Mr. Abbott.—Of course, I would be in a much stronger position.
To be sure it is an elementary principle that the warrant of com-
mitment must show the jurisdiction on the face of it ; but this is not
a warrant of remand in conformity with the statute. By that same
warrant, which sends a prisoner to confinement, the jailer is ordered
to bring him back again on some day specified in the commitment.
The intention of the law is plain, that by the warrant which commits
him, the time of his discharge, under certain circumstances, is to
he settled.
Judge Mondelet.—We know not how these prisoners are before
the Court. Are they under examination under the provision of the
Ashburton Treaty ?
Mr. Abbott.—No.
Judge Mondelet.—Suppose they are to be dealt with under the
Ashburton Treaty, is the Judge of the sessions, in his mode of action,
to be strictly and exclusively governed by this statute ?
Mr. Abbott.—In my opinion, the law observed in this case does
not apply to the Ashburton Treaty—if we were called on to argue
whether a justice of the peace, who commits these prisoners, is bound
to follow the terms of this act, we might urge that it is the terms
of our statute which should regulate the conduct of such justices.
The Court will perceive that by the statute passed to enable Judges
to administer the Ashburton Treaty, there is no power given to
remand at all.
Judge Drummond.—Was there no power to remand before that
statute was passed ?
Mr, Abbott.—Suppose it to be a necessary consequence that there
should be a remand, is it not to be confined to some period ? Could
the magistrate who arrests, leaving this statute altogether out of the
question, under the act passed to facilitate the execution of the Ash-
14
burton 'reaty, commit the prisoners for an unlimited time, or as
long as he pleases ?
Judge Drummond.—Tff the magistrate does not name the day in
which the prisoners are to be brought up, does that deprive him of
his jurisdiction ?
Mr. Abbott.—I can satisfy your Honors that under the statute
passed to facilitate the execution of the Ashburton Treaty, this
Court has not the power to remand. I maintain this is a power
beyond the magisterial jurisdiction.
Judge Mondelet.—If that magistrate exceeds his jurisdiction,
there must be a remedy ; if he commits an act of oppression he must
be restrained. But the power of remanding does exist, even if it
does not appear in the statute; such a power is essential, and if
the magistrate exceed his authority he must be brought to account
for it. But there can be no excess of jurisdiction.
Mr. Abbott. —What I said before and repeat is—that a magistrate
has no power to commit a man for an unlimited time. Ifa warrant
commits a prisoner for a longer period than the law allows, he is
entitled at once, without waiting for the expiration of his term, to
come before the Court and claim his discharge, in consequence of
an illegal commitment. Such a case would be analagous to the
present one. If there is any right in a magistrate to remand at all,
it must be exercised in a reasonable manner ; and he must state
what extent of jurisdiction he assumes to himself. If the act be
done under the statute, he cannot remand for a longer period than
the time provided for by the statute. I merely wish prima facie
to show that the case deserves consideration : and I can produce
authorities.
Mr. Kerr.—The first point to be determined is, whether under
any circumstances connected with aremand for further examination
a writ can issue for a habeas corpus or not. I defy the learned
counsel on the other side to show a case where a warrant of com-
mitment being invalid and bad, the right to apply for a writ of
habeas corpus did not exist. I admit that when a warrant for com-
mitment or examination is good on its face, no writ of haheas corpus
can issue ; but when such a warrant is bad on its face, a writ of
habeas corpus can issue. I would ask is there no difference between
remanding prisoners for an indefinite length of time, and bringing
them up ata stated time, as laid down in the statute? If we are
precluded from making this allegation we shall be told that prisoners
under examination have no right to a writ of habeas corpus. And would
not a motion for habeas corpus be as applicable three years hence
as it is to-day, if the crown came forward and said, ‘‘ These men
are still under examination?”’ ‘These men have a right to the
habeas corpus whether under examination or not, if the warrant
ace
notl
as t
lear
arg
shel
a sol
15
for their commitment be imperfectly drawn up, and if it has been
plead shown that the magistrate exceeded his jurisdiction.
ay in Judge Aylwin said the matter was very easily disposed of. An
m of application had been made for a habeas corpus, in order that a writ
should issue on two commitments. Now, each of these commit-
atute ments was perfectly sufficient, and the defence would take nothing
this by their petition. -
ower Judye Mondelet said that this decision of the Court was founded
on clementary principles, which admitted of no doubt. It was es-
ction, sential, in common law, that the Judge of the sessions, who was
must invested with jurisdiction correctly exercised, should have the power
if it of remanding a prisoner at his own discretion. ‘These men, for ial
ind if whom application was made, must and shall be protected if they hi
count have a right to it, and the community must and shall be protected
according to law. ‘The whole matter shall be conducted according
strate to law, and not according to prejudice and popular clamor. ‘The
rant Judges will see that the law is carried out, whether the parties alte
he is accused be or be not liberated. In this country the Judges have ik
m, to nothing to fear either from crown or people, and will do their duty ;
ice of as the law directs.
© the Judge Drummond agreed with the decision of the other two Hy
at all, learned Judges. He observed that Messrs. Abbott and Kerr had an
state argued the case like expert lawyers, as they were, and without the Ch
et be slightest design of exciting prejudice. The Judges had to perform stl
than a solemn duty, and he hoped that all knew they would do it without 5
Facie regard to party or prejudice. He agreed with his confréres because
duce he believed there had been nothing irregular in the proceedings,
though the most regular course would certainly have been to fix a
nacr | day on which the accused should be brought up.
ation Judye Aylwin—The order of the Court is, that the defence take
Lrned nothing by their petition.
com-
it of
com-
Dr pUs
| if of
een
ging
b are
ners
ould
ence
men
the
rant
16
Province OF CANADA, | To all or any of the Constables, or other
District of Iberville. \ Peace Officers, in the District of Iberville:
Whereas, Samuel Kugene Lackey, Squire Turner Teavis, Ala-
manda Pope re Charles Moore Swager, George Scott, Bennett
II. Young, Caleb McDowall Wallace, James “Alexander Doty,
Joseph McGrorty, § Samuel Simpson Gregg, Dudley Moore, Thomas
Bronsdon Collins, and Mareus Spurr, all late of the town of St.
Albans, in the County of Franklin, in the State of Vermont, one of
the United States of America, laborers, have this day been
charged, upon oath before the undersigned, Charles Joseph Cour-
sol, Esquire, Judge of the Sessions of the Peace, in and for the
‘ity of Montreal, “including the District of Iberville aforesaid, under
and by virtue of the proclamation to that effect made and pub-
lished, for that they on the nineteenth day of October instant, at
the town of St. Albans, in the State of Vermont, one of the United
States of America, being then and there armed with certain offen-
sive weapons and instruments, to wit, pistols, commonly known and
called revolvers, loaded with powder ‘and balls, and capped, in and
upon one Cyrus Newton Bishop, feloniously did make an assault,
and him the said Cyrus Newton Bishop in bodily fear and in
danger of his life then and there feloniously did put, and a certain
sum of money, to wit, to the amount of seventy thousand dollars,
current money of the said United States of America, and of the
value of seventy thousand dollars current money aforesaid, of the
moneys and property of the bank of St. Albans, a body corporate,
constituted and recognized by the laws of the said State ot Ver-
mont and the said United States of America, from the person, cus-
tody and possession, and against the will of the said Cyrus Newton
3ishop, then and there feloniously and violently did steal, take and
carry away against the form of the statutes of the said State of
Vermont in such case made and provided, and against the peace
and dignity of said State.
These are therefore to command you, in Her Majesty’s name,
forthwith to apprehend the said Samuel Eugene Lackey, Squire
‘Turner Teavis, Alamanda Pope Bruce, Charles Moore Swager,
George Scott, Bennett H. Young, Caleb McDowall Wallace, James
Alexander Doty, Joseph MeGrorty, Samuel Simpson Gregg, Dud-
ley Moore, Thomas Bronsdon Collins, and Mareus Spurr, : and to
bring them before me at the Court-house in the City of Montreal,
in the said District of Montreal, to be dealt with according to the
provisions of te statutes in such case made and provided.
Given undehmy hand and seal, at the town of St. Johns, in the
said District, this twenty-fourth day of October, in the year of our
Lord one thousand eight hundred and sixty-four.
(Signed) CHARLES J. COURSOL,
Judge of the Sessions of the Peace.
AR ane ap assaadaih ne
away
Q- Bit
yy other
verville :
is, Ala-
Bennett
wr Doty,
Thomas
n of St.
nt, one of
lay been
ph Cour-
1 for the
id, under
and pub-
instant, at
he United
‘tain offen-
known and
ed, in and
an assault,
sar and in
d a certain
and dollars,
and of the
said, of the
y corporate,
te ot Ver-
person, cus-
rrugs Newton
bal, take and
id State of
t the peace
gty’s name,
key, Squire
re Swager,
Nace, J ay
I rege, Duc a
purr, and to
hf Montreal,
rding to the
led.
Johns, 0 the
year of our
RSOL,
rf the Peace.
Fe iA aOR
na ams DEI A
17
WARRANT ISSUED IN VERMONT.
To Leonard Gilman, Esq., one of the Justices of the Peace within
and for the County of Franklin, in the State of Vermont, comes
Chellis 'T. Safford, Grand Juror, within and for the town of St.
Albans, in the County of Franklin, in the State of Vermont, and
gives said justice to understand in and upon his oath of office, com-
plaint makes that Squire Turner Teavis, Alamanda Pope Bruce,
Marcus Spurr, Charles Moore Swager, Bennett H. Young, George
Scott, Caleb McDowall Wallace, James Alexander Doty, Joseph
McGrorty, Samuel Simpson Gregg, Dudley Moore, William H.
Hutchinson, Samuel Eugene Lackey, and Thomas Bronsdon Collins,
of St. Albans aforesaid, with force and arms at St. Albans afore-
said, to wit: on the nineteenth day of October in the year of our
Lord one thousand eight hundred and sixty-four, in a bank-building
then and there situate, and being and known and called by the
name of the St. Albans bank, in and upon one Cyrus Newton
Bishop, he the said Bishop there and then being the teller of said
bank, there and then being in the peace of God and the State of
Vermont aforesaid, feloniously did make an assault, and him the said
Cyrus N. Bishop in bodily fear and danger of his life in the bank
building aforesaid, there and then feloniously did put, and one thou-
sand bills commonly called bank bills issued by the St. Albans
bank, said bank being an incorporated bank, in the said State of
Vermont, and the property of tle said bank, and of the denomina-
tion and value of ten dollars each, one thousand bills commonly
called bank bills issued by said bank, and of the property of said
bank, and each of the denomination and value of twenty dollars,
two thousand bills commonly called bank bills issued by the said
bank, and the property of said bank, and of the denomination and
value of five dollars each. ‘Two thousand bills commonly called
bank bills issued by the said bank, and of the denomination and
value of one dollar each ; ten thousand bills commonly called bank
bills issued by the said bank, and the property of said bank, and of
the value and denomination of two dollars each ; four hundred bills
commonly called bank bills, issued by and the property of said bank
of the denomination and value of fifty dollars each, and five hun-
dred pieces of silver money commonly called half dollars, each of
the denomination and value of fifty cents each, current money of
the United States, and the property of said bank, from the person
and possession and against the will of the said Cyrus Newton
Bishop, in the said bank building, as such teller as aforesaid, then
and there feloniously and violently did rob, steal, take, and carry
away, contrary to form, force, and effect of statute of said State in
B
18
such case made and provided, and against the peace and dignity of
said State.
CHELLIS 8. SAFFORD,
Grand Juror.
Witnesses, Cyrus N. Brsnop and others.
STATE OF VERMONT, ) St. Albans, October the twentieth, in the
Franklin County, SS. \ year of our Lord one thousand eight hun-
hundred and sixty-four. The above complaint exhibited to me,
LEONARD GILMAN,
Justice of the Peace.
STATE OF VERMONT, ) To any Sheriff or Constable in the State:
Franklin County, SS. j Greeting i—
By the authority of the State of Vermont, you are hereby com-
manded to apprehend the bodies of the said Samuel Eugene Lackey,
Thomas Bronsdon Collins, Squire ‘Turner Teavis, Alamanda Pope
Bruce, Marcus Spurr, William H. Hutchinson, Charles Moore
Swager, Bennett H. Young, George Scott, Caleb McDowall
Wallace, James Alexander Doty, Joseph McGrorty, Samuel Simp-
son Gregg, and Dudley Moore, or either of them, and by whatever
name they or either of them may be known or called, and them have
before me at the office of the Sheriff in St. Albans aforesaid, there
and then to answer unto the foregoing complaint, and to be further
dealt with according to law. Fail not, but due service and return
make. Dated at St. Albans, in the County of Franklin, this twen-
tieth day of October, in the year of our Lord one thousand eight
hundre ' and sixty-four.
LEONARD GILMAN,
Justice of the Peace.
STATE OF VERMONT, } St. Albans, October twentieth, in the year
Franklin County, SS. § of our Lord one thousand eight hundred
and sixty-four. I hereby certify the above to be true copies of the
complaints made to me, and my account issued thereon.
LEONARD GILMAN,
[5 cent stamp. ] Justice of the Peace.
STATE OF VERMONT, } I, Joseph H. Brainerd, clerk of the county
Franklin County. j Court of the county of Franklin, in the
State of Vermont, which Court is a common law Court of record, do
hereby certify that Leonard Gilman, Esq., was on the twentieth day
of October, in the year of our Lord one thousand eight hundred
and sixty-four, and still is a Justice of the Peace in and for the said
County of Franklin, duly elected and qualified to act as such mag-
istrate ; that the signature to the foregoing certificate, purporting to
=o
i
i
‘a
i if
the
un-
iy
Ce.
ate>
:om-
key,
Pope
oore
ywall
im p-
tever
have
there
rther
turn
wen-
ight
\
?
edce.
year
dred
the
19
be the signature of said Gilman, is the genuine signature ef said
Gilman, and that full faith and credit ought to be given to the
official acts of said Gilman.
In testimony whereof I have hereunto affixed the
seal of the County Court of the County of Frank-
lin aforesaid, and subscribed my name, officially,
{Seal of C.C.] at St. Albans, in said County of Franklin, this
. twenty-first day of October, in the year of our
Lord one thousand eight hundred and sixty-
four.
[Stamp 5 cts. ] JOSEPH I. BRAINERD, Clerk.
STATE OF VERMONT, ) T, Asa Owen Aldis, of St. Albans, in the
Franklin County, SS.) County of Franklin and State of Vermont,
one of the Judges of the Supreme Court of the State of Vermont,
and chief Judge of the County Court of the County of Franklin and
State of Vermont, hereby certify that Joseph H. Brainerd, whose
signature is appended and subscribed to the above certificate, is
the clerk of the said County Court of the County of Franklin afore-
said ; that I am well acquainted with and know the ignature of
the said Brainerd, and the seal of the said County Court; that the
signature subscribed to the above certificate is the genuine signa-
ture of the said Joseph H. Brainerd, and the seal affixed to the said
certificate is the seal of the said County Court, of the County of
Franklin aforesaid ; that the said Court is a common law Court of
record ; that the said Brainerd as clerk of the said County Court,
has the custody of the record of all commissions issued to Justices
of the Peace within and for the County of Franklin, and is the
proper officer by law to certify as to the election, qualification, and
authority of Justices of the Peace, acting within and for the county
of Franklin aforesaid.
In testimony whereof I have hereunto set my hand, at St. Albans,
in the County of Franklin aforesaid, this twenty-first day of October,
in the year of our Lord one thousand eight hundred and sixty-four.
ASA OWEN ALDIS,
Judge of the Supreme Court of the State of Vermont,
and Chief Judge of the County Court of the
[5 cent stamp. ] County of Franklin in the State of Vermont.
UNITED STATES OF AMERICA, ) I, John Gregory Smith, governor
Strats or VERMONT, of said State of Vermont, do here-
Executive Department. by certify that the foregoing docu-
ment is authenticated according to the laws of said State, and of
the United States; that the signatures of the respective officers
attatched to said certificates of authentication are genuine; and
20
that said officers respectively hold and exercise the offices which
they in and by said certificates purport to hold and exercise ; and
that the seal of the said County Court of the aforesaid County
of Franklin thereon, is genuine, and that full faith and credit ought
to be given to said documents and certificates.
In witness whereof I have caused the seal of said
State to be hereto attached, and have affixed
[Seal of State of | my signature hereto, at Montpelier, this thirty-
Vermont. | first day of October, in the year of our Lord
one thousand eight hundred and sixty-four.
[5 cent stamp. ] J. GREGORY SMITH.
By His Excellency the Governor,
Attest, G. W. Barney, Jun., Secretary of State.
Endorsed.
STATE OF VERMONT,
versus
SquirE TurNeER TEAVIS, Cates McDowatut WALLACE,
ALAMANDA Pope Bruce, JAMES ALEXANDER Dory,
Marcus Spurr, SAMUEL Simpson GREGG,
CHARLES Moore SwaGeEr, Duptrey Moore,
WiuiiamM H. ilvtcurnson, SAMUEL Eugene Lackey.
Bennett H. Youna, THoMAS BronsDon CoLLIns.
GEORGE Scott,
Filed, Sth Nov., 1864.
CJ.C., J.S.P
ee oe ee ae Wee ee”
re Deel, . Ste. Wale Cree a”
HVIDENCE
ST, ALBAN’S BANK CASE,
PROVINCE OF CANADA,
District of Montreal.
America, teller of the St. Albans bank, now in the city of Mont-
real, taken on oath this seventh day of November, in the year
of our Lord one thousand eight hundred and sixty-four, at the
Police Office in the Court-house, in the city of Montreal, in the Dis-
trict of Montreal aforesaid, before the undersigned Judge of the
Sessions of the Peace in and for the said city of Montreal, in the
presence and hearing of Samuel Eugene Lackey, Squire Turner
Teavis, Alamanda Pope Bruce, Charles Moore Swager, George
Scott, Bennett H. Young, Caleb McDowall Wallace, James Alex-
ander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dudley
Moore, Thomas Bronsdon Collins, Marcus Spurr, and William H.
Hutchinson, who are now charged before me, upon complaints made
under oath before me under the provisions of the Treaty between
Her Majesty the Queen, and the United States of America, and
our Statutes in that behalf made, with having committed within
the jurisdiction of the United States of America, the following
crime mentioned in the Treaty between Her Majesty the Queen,
and the United States of America, to wit:—For that they,
the said Samuel Eugene Lackey, Squire Turner Teavis, Ala-
manda Pope Bruce, Charles Moore Swager, George Scott, Bennett
II. Young, Caleb McDowall Wallace, James Alexander Doty,
Joseph MeGrorty, Samuel Simpson Grege, Dudley Moore, Tho-
mas Bronsdon Collins, Marcus Spurr, and William H. Hutchinson,
on the nineteenth day of October last past, at the town of
St. Albans, in the State of Vermont, one of the United States
of America, being then and there armed with certain offen-
sive weapons and instruments, to wit: pistols commonly known and
called revolvers, loaded with powder and balls and capped, in and
upon one Cyrus Newton Bishop, feloniously did make an assault and
him the said Cyrus Newton Bishop in bodily fear and in danger
of his life, then and there feloniously did put, and a certain sum of
money, to wit: to the amount of seventy thousand dollars current
money of the said United States of America, and of the value of
seventy thousand dollars current money aforesaid, of the moneys
Pete ah toes Catedisine ad
“Kye ager eies™s
Se a
Dep rates a so ir ements aia
rae =
Sora
6 ian
Farias
2
and property of the bank of St. Albans, a body corporate, consti-
tuted and recognized by the laws of the said State of Vermont,
and the said United States of America, from the person and
custody, and possession, and against the will of the said Cyrus
Newton Bishop, then and there feloniously and violently did steal,
take, and carry away against the form of the Statutes of the said State
of Vermont, in such case made and provided, and against the peace
and dignity of the said State. The deponent Cyrus Newton Bishop
on his oath saith—On the nineteenth day of October last past, I
was fulfilling the duties of teller in a banking institution. known as
the St. Albans bank, in the town of St. Albans aforesaid, during
which day, and between the hours of three and four of the clock,
in the afternoon, two persons whom I had not known before, but
whom I have since identified and whom I now see in the Court, and
point out as two of the prisoners under examination. ‘These two
persons are now known to me by the names of Thomas Bronsdon
Collins and Marcus Spurr, such being the names to which they
answer. At the time the said Collins and Spurr entered the said
bank upon the said nineteenth dav of October last, I was behind
the counter of said St. Albans bank. ‘hey immediately advanced
towards the counter behind which I was, and each of them pointed
a revolver of a large size to my breast, I being then about three
feet distant from them. Seeing the revolvers thus presented towards
me, I sprang from behind the counter to the director’s room which
was near at hand, and attempted to close the door, but the said
Collins and Spurr having followed me, forced the door open, and
in doing so, I was struck on the forehead, and bruised, leaving a
mark which was visible for some days. After having thus forced
open the door, one of the prisoners, the said ‘Thomas Bronsdon
Collins, laid hold of me with one hand by the collar of my coat, and
with the other presented a revolver to my head, so near that it
almost touched me. ‘The other prisoner, Marcus Spurr, also pre-
sented a revolver to my head, at the same moment, both of them
stating that if I made any further resistance or gave any further alarm,
they would blow my brains out. I asked them what the programme
was, and they answered that they were Confederate soldiers detailed
from General Early’s army to come north, and to rob and plunder as
our soldiers were doing in the Shenandoah valley. They then asked
me where our gold was, to which I answered we had none. They
next asked me if we had any silver, and I told them we had. At
this moment I observed that three other persons had entered the
bank; they were and still are unknown to me. ‘They joined the
other two, and seemed to know each other, and acted in concert
with each other. The leader of the gang then proceeded to admin-
ister some kind of an oath to me. He compelled me to raise up my
sti-
nt,
nd
rus
al,
ate
ce
10p
ik
as
Ing
ck,
but
md
wo
Jon
ley
aid
ind
ced
ted
ree
rds
ich
aid
nd
a
23
right hand, and called upon me to solemnly swear that I would not
give alarm or fire upon the Confederate soldiers; that is about
all I can remember of the oath in question. There was also in the
director’s room of the said bank at the time to which I have
referred to, one Martin A. Seymour, a clerk of the said bank:
revolvers were also presented at him in the director’s room by
some of the said five persons, who were then acting in concert, and
amongst whom were the said Collins and Spurr. They threatened
him, and said that if he made any resistance and gave the alarm, they
would blow his brains out also. After having thus iieeatened him,
the oath of which I have before spoken, was administered to him
and to me. Both of us were then detained as prisoners in the said
room, two of the said five persons acting as guard over us, with a
revolver in each hand: I was then ordered to show them the place
in which the silver was kept, and I opened the safe in the said
director’s room where the said silver was kept. So soon as I did
this, one of the five persons pulled out three bags of silver containing
about fourteen hundred dollars altogether. One of the party then
remarked that they could not carry the whole of it, upon which they
tore open the bags, and took away therefrom about four hundred
dollars of the silver they contained. ach of the said five persons
took a share of the said silver. I observed that four of these per-
sons had satchels made, I believe, of morocco, into which they put
the said silver, as also into their pockets. During the time the
silver was thus being taken, Mr. Seymour and myself’ had to look
on, being threatened that if we offered any resistance, we would
have our brains blown out. After having thus taken the silver,
three of the party went into the banking room, in which there was
a safe for keeping of the bank bills of the said bank, and for the
safe keeping of other currency. Said Collins and Spurr were two
of the three said persons ; the other two remained guarding the said
Seymour and myself in the way I have already stated. From this
latter safe, the said last mentioned three persons took and carried
away a sum of money amounting as nearly as I can now state to
between seventy and eighty thousand dollars current money of the
said United States of America. About forty thousand dollars of this
amount was composed of bank bills issued by the said St. Albans
bank, about twenty-four thousand dollars in promissory notes of the
said United States, commonly called and known as greenbacks.
They also took from the said safe other sums of money composed of
bank bills issued by different banks in other States of the said
United States, but all of which was current money as aforesaid. I
now see before me in Court, twenty-four packages of bank bills,
and greenbacks which I recognize and identify as the property of
the said St. Albans bank, and which forms a part of the sum of
Fn veg ener neem
Sy
24
money I have already stated was stolen from the said St. Albans
bank, by the said five persons, amongst whom were the said Thomas
Bronsdon Collins and Marcus Spurr, on the said nineteenth day of
October last. The said packages of bills and greenbacks are tied
each with a paper band, eighteen of the said packages are tied with
paper bands, which I recognize and identify as having been put on
the said packages before they were stolen as aforesaid. Three of
the said packages have upon them the letters “‘ B. B., cash,”’—the
letters ‘“‘ B. B.” representing the name of Bradley Barlow, and the
word ‘‘ cash’’ his occupation of cashier in the said bank. Fifteen of
the packages now before me, are marked in pencilling by the
said Martin A. Seymour, with the figures ‘“ 1000” pencilled on
each, and thereby representing each package as containing one
thousand dollars. ‘I'wo of the said packages are pencilled by the said
Seymour, the one with the figures ‘‘ 500” representing it to contain
five hundred dollars, the other similarly pencilled with the figures
“© 100” representing it to contain one hundred dollars. These last
mentioned packages in number seventeen, contain as per mark
bills issued by the said St. Albans bank to the amount and value
of $14,600 current money aforesaid. One of the said seventeen
packages by the said pencil mark is represented as containing one
thousand dollars of the promissory notes of the United States, com-
monly called greenbacks, and current money aforesaid. In addi-
tion to the said seventeen packages, I have now also before me
seven other packages represented by the figures in writing and
pencilling, as containing altogether fifty-eight hundred and ninety-
five dollars. One of these last packages I also observe upon it the
figures “ 1000” in pencilling by the said Martin A. Seymour, mak-
ing altogether twenty-four packages represented by their respective
marks to contain twenty-one thousand four hundred and ninety-five .
dollars, which I declare to be the property of the said St. Albans bank,
and a part of a larger sum stolen in manner as aforesaid, from the
said bank. ‘The said packages of bank-bills, greenbacks, are
now exhibited to me, by Guillaume Lamothe, Esq., chief of police,
in whose possession and custody they have been placed; and I
was informed that they were taken with other sums of money
from the persons of the prisoners, but I have no personal know-
ledge of it. he amount of money stolen from the said bank,
was taken and carried away by the said five persons hereinbefore
referred to, and amongst whom were the said Thomas Bronsdon
Colkns and Marcus Spurr, against my will and consent, and by
their having put me in bodily fear of my life ; and I further say,
that I believe that if I had offered any resistance to the robbery in
question, or attempted any alarm, these persons would have, as in
the event of my doing so, they had threatened to do, blown my brains
ee ae ee oe ee a ee
aoe Wit ue tere ga ot
a
25
out; and I further believe that they would have dealt in like manner
with the said Martin A. Seymour, if he had offered any resistance
to the said robbery. After the said five persons had entered the
bank, they turned the key of the lock of the entrance door, so as to
prevent ingress or egress ; and during the time they were engaged
in robbing the bank, a knock was heard at the door, upon which
one of the said party of five opened it, and Samuel Breck, of St.
Albans aforesaid, a merchant, entered. The moment he did so, the
person who opened the door locked it: one of the said party then
took hold of the said Breck by the collar of his coat with one hand,
presenting a relver at him with the other. This person demanded
his money, and forced him towards the counter. The said Breck,
thereupon handed to this person a sum of money which I understood
amounted to three hundred and ninety-three dollars. A note of
the said Breck fe:l due that day, for five hundred dollars. I heard
Breck say to one of the said party, that his money was private pro-
perty, and I think that one of them replied, ‘* I dont care a damn for
that.”’ After taking his money he was forced by the party into the
said director’s room, and there, with Seymour and myself, detained
asa prisoner. He was also told by the same persons, that if he made
any alarm, they would shoot him. After this occurrence, a boy of
seventeen or eighteen years of age, a clerk in the store of Joseph
S. Weeks, a merchant of the town of St. Albans, also knocked at
the door of the said bank, and was admitted by one of the said party ;
he was then also laid hold of by one of the said party, and forcibly
thrust into the said director’s room, and there, with the rest of us,
kept a prisoner. Immediately after the accomplishment of this rob-
bery, and before the said five persons had left the said bank, I heard
several reports of fire arms as if discharged opposite the said bank,
and thereupon three of the said five persons left the said bank,
amongst whom were the said Collins and Spurr, and in less than
two minutes afterwards, the remaining two left the bank, also walk-
ing backwards out, and with their revolvers pointed at me, and the
others detained in said room. As soon as the bank was clear of
the said five persons, I stepped out on to the foot-walk in front of the
said bank, and as I did, I saw the several persons on horseback,
riding in a northerly direction. I judged they were between
twenty-five and thirty men; some of them discharged large revol-
vers in all directions at the citizens, as they were passing by amongst
whom were women and children. This party to which I referred
was dressed in civilian’s dress, and so also were the five persons
who committed the robbery in the said St. Albans bank. They
presented nothing in their appearance or dress to lead to the belief
that they were soldiers, unless it was their possession of revolvers.
They all seemed to be acting in concert together, and rode off from
26
the said town of St. Albans with great speed upon horses. The
money so stolen as aforesaid, was in my custody and possession, up
to the time of the said robbery. And my further examination is con-
tinued till to-morrow morning at at ten o’clock, and I have signed
CYRUS NEWTON BISHOP.
Sworn and taken before me this sev-
enth day of November, 1864.
Cuas. J. Courson, J.S.P.
On the eighth day of November in the year of our Lord one
thousand eight hundred and sixty-four the deponenCyrus Newton
Bishop above named, re-appeared before me the undersigned Charles
Joseph Coursol, Esquire, Judge of the Sessions of the Peace in and
for the city of Montreal, and being sworn, deposeth and saith :—
Since the close of my examination yesterday, I counted the money
contained in the twenty-four packages hereinbefore described, and
I find that they contain the amount of money already mentioned,
namely : twenty-one thousand four hundred and ninety-five dollars ;
seventeen of the said packages contain one thousand dollars each,
in bank-bills issued by the said St. Albans bank, at St. Albans
aforesaid ; another of the said packages contains eleven hundred
dollars of like bank-bills; another five hundred dollars of the
same ; another four hundred and ninety-five of the same; another
four hundred dollars of the same; another one hundred dollars of
the same; two other packages contain, one nine hundred, the
other one thousand dollars in promissory notes of the said United
States, commonly called greenbacks, making altogether the said
sum of twenty-one thousand four hundred and ninety-five dollars
current money of the said United States. I further recognize
and identify as belonging to the St. Albans bank aforesaid, and
forming a part of a larger sum stolen from the said bank, on the
said nineteenth day of October last, the sum of twenty-eight
hundred and forty dollars, being a part of a larger sum produced
by John O'Leary, a witness examined in this matter, and which
sum of money is now before me. ‘Two thousand dollars of this
last mentioned sum is in the promissory notes of the said United
States commonly called greenbacks; the balance is composed of
bills issued by different other banks in the said United States. I
identify the said sum of money by the paper bands around the
packages in which it is contained. In addition to all the amounts of
money hereinbefore spoken of and described by me, I now identify
another sum of money produced this day by the said chief of police,
amounting to nine hundred and fifty dollars in the promissory notes
of the said United States of An.:rica, commonly called greenbacks,
as forming a part of the money stolen from the said bank, on the
a!
— Ss Des le an lene
fed eed IO lClCN Ci
m— fp
n~AF s~ fn
1 one
ewton
1arles
n and
th :—
loney
, and
oned,
lars ;
each,
lbans
dred
' the
ther
rs of
the
ited
said
llars
nize
and
the
ght
ced
27
nineteenth day of October last, and the property of the said bank.
This last sum of money I identify by the paper bands around the
packages in which it is contained, and also by the figures in pen-
ciling which are to be seen on the larger band which surrounded
all the packages and name by the figures ‘‘ 1000” which I recognize
and identify as having been put there by myself; I also recognize
upon two of the smaller paper bands which surround the smaller
packages the handwriting of Abner Forbes, cashier of the Ver-
mont Central Railroad, and upon one of the said bands, the said
Abner Forbes has written in figures “371,” and in writing the
word ‘Tlartland.” I have a particular knowledge of this band,
because it surrounded a sum of three hundred and seventy-one
dollars, which was deposited in the said bank, before the robbery
in question, by the said Forbes; and this band so marked was
afterwards taken from the said package of three hundred and
seventy-one dollars, and put by me around a package of one hun-
dred dollars, the same which I now recognize. ‘The second smaller
paper band I also identify by the figures “149,” and the words
W. Hartford” written upon it, and which I recognize to be the
hand-writing of the said Abner Forbes, and which surrounded a
package of one hundred and forty-nine dollars by him also deposited
in the said bank, previous to the said robbery. After the said de
posit, I used the said band to tie the package of bills which it now
surrounds. I further recognize and identify fifteen other packages of
money now produced by the said chief of police as forming a part of a
larger sum stolen from the said St. Albans bank, on the said nine-
teenth day of October last. The said packages contain altogether
twenty-six hundred and ninety-five dollars in various denomination,
some of which are promissory notes of the said United States, called
greenbacks, and other the issues of different banks in the said States.
I recognize this sum of money by the paper bands in which it is con-
tained. I identify them because I have used them in the bank.
I further identify two other packages of money now produced by the
said chief of police, containing one, one thousand dollars, the other,
nine hundred and eighty-four dollars, as forming a part of a larger
sum stolen from the said St. Albans bank on the said nineteenth day
of October last, and which is the property of the said bank. Upon
one of this last named packages, I observe in pencilling the figures
‘“¢ 1000,” and the letters “ B. B.” representing Bradley Barlow,
cashier of the said bank. These figures and letters, were put
there, by Martin A. Seymour, a clerk in the said bank. ‘The other
package I recognize by the paper band surrounding it. And I
further say that, that other sums of money have been on the said
nineteenth day of October last, stolen from the said bank, which I
have not seen since the robbery in question. All the moneys which
et
es
-
}
i
ed
pes aes
Sie
28
T have identified as having been stolen from the said bank, on the
said nineteenth day of October last, were so stolen by the said five
persons to whom I ‘have previously referred, and among whom were
Thomas Bronsdon Collins and Marcus Spurr, two of the prisoners
now under examination, and identified, and pomted by me.
The foregoing deposition having been read over in the presence
of the persons so charged, the deponent declares the same to con-
tain the truth and hath signed
CYRUS NEWTON BISHOP.
Sworn and acknowledged before me
at Montreal the 8th November,
186-4.
Cuas. J. Courson, J.S.P.
The foregoing deposition having been made and read in the
presence and hearing of the prisoners so above charged, they are
asked if they have any questions to put to the deponent. They
declare they have, and the following evidence is taken in Cross-
examination by Mr. Kerr the prisoners’ counsel.
I do not recollect that the persons who entered the bank in
the first instance said anything to me previous to my getting
in the director’s room. I was very much frightened when they
pointed their revolvers at me. The first thing ‘that I recollect of
now that I asked him was, ‘ What this meant, ”? and what the pro-
gramme was? Te then said that they were Confederate soldiers
detailed from Early’s army, to come north to rob and plunder, the
same as our soldiers were doing in the Shenandoah valley. When
they took hold of my person by the collar, they said that if I
made any further resistance or gave any alarm, they would blow
my brains ont. I might have asked them to spare my life, some
time during their presence there, but I cannot say positively
that I did so. Fright and confusion consequent thereon tended
to confuse my thoughts at first, still I recollect what took place
at first; I am certain that I detailed all the incidents correctly ;
I may have overlooked some however; I cannot swear that I
did not ask them to spare my life. I understood, when they said
that they were Confederate soldiers, that they were soldiers
from the South. North and South have been at war with each
other for some years past, and are still so. Collins told me, after
the silver was taken, that if their soldiers were not fired upon,
they would not harm us. I don’t remember the whole of the
oath administered to me by Collins, because I did not stop to
study it at that time. I was willing to do anything at that time
to save my life. The initials “ C. N. B.,” upon the package of
one thousand dollars greenbacks, were put by me at Stanbridge,
see
Se aces hes
frisce?
ere
on the
uid five
m were
isoners
esence
O COon-
OP.
in the
ey are
They
Cross-
nk in
etting
they
et of
pro-
Idiers
*, the
Vhen
if I
blow
29
on or about the twenty-second day of October last; the figures
1,000” were also put by me there. I identified said packages
at Stanbridge by the figures “1,000” in pencil on the paper
band of the said parcel, put there by Martin A. Seymour. I swear
positively that those figu' are Martin A. Seymour. I iden-
tified the package of nine nundred dollars, solely by the paper
bands enveloping the small packages, of which it is composed. I
do not know that there is anything very peculiar about those bands.
It is a common thing in banks to have bands of that kind round
parcels of their notes. I recognize the package of nine hundred and
eighty-four dollars, merely by the band upon the small packages it
contains, knowing that we had such money put up. ‘The package
of ninety-five dollars in greenbacks, of different denominations,
included in the large package marked as containing two thousand
six hundred and ninety-five dollars, were loose when I first
saw them at Stanbridge, and the band was placed round them
by me. ‘he package of five one hundred dollars greenbacks,
were also loose when I first saw them, and were banded by me
in Stanbridge. There were no distinguishing marks upon the
greenbacks so put up by me at Stanbridge, to show that they
had been the property of the St. Albans bank, and I identified
them because they were in with others upon which there was
special marks. I cannot identify the hundred dollar greenbacks
in the package by any other mean, that he was in among others
that were marked. When I came out of the bank, as mentioned
in my examination-in-chief, the parties on horseback, who had
fired pistols as I have mentioned, were at a distance of about
one quarter of a mile from me. I cannot tell how many people
there were passing the said band of men at the time I went
on the side-walk. I cannot tell how many women and children I
saw near them. I saw half-a-dozen near them. I cannot say that
I saw them firing when I came on the foot-walk, but they were
firmg when I saw them in front of the bank. I saw them previous
to leaving the bank, through the window. I did not see any person
wounded by the shots fired by the party. I still swear that they
were firing at the citizens, because I saw them pointing their pistols
down to the citizens, and saw and heard them discharge their pistols.
Perhaps two minutes elapsed between the time that the last two
men left the bank and my going out. I saw the men on horseback
firing as aforesaid, previous to the two men leaving the bank. The
band had not left the town of St. Albans, when I came out on the
foot-walk. I think that the town of St. Albans extends in a
northerly direction more than one quarter of a mile from the St.
Albans bank. I was in the director’s room when the shots were
fired, and from the place I stood I could see through the banking
room into the street.
30
On re-examination by Mr. Ritchie on the part of the prosecution
the deponent saith:—When I said, upon my cross-examination,
that the parties were soldiers from the South, I meant to say that
they claimed to be such. Immediately before the robbery of
the bank, the bank was in possession of notes of the same kind
and denomination as those referred to in my cross-examination,
and notes of those descriptions were taken away from the bank by
the parties I have spoken of.
The prisoners counsel and the counsel for the prosecution having
declared that they had no further question to put to the deponent
and this deposition having been read in the presence of the said
prisoners the deponent declares it contains the truth and hath signed
CYRUS NEWTON BISHOP.
Sworn, taken, and acknowledged
on the day, month, and year here-
inbefore mentioned before me.
Cnas. J. Coursot, J.S.P.
cution
nation,
yy that
sry of
e kind
nation,
ink by
having
ponent
e said
signed
OP.
PROVINCE OF CANADA ' . Arrom
District of Montreal, ) 8e5 LICE ‘OURT
The examination of Henry Nelson \V man, FE aire, of the
Township of Stanbrige in the District of lford. Justice of the
Peace taken on oath this third day of November in the year of our
Lord one thousand eight hundred and sixty-four, at the Police
Office in the Court House, in the city of Montreal, in the District
of Montreal aforesaid, before the undersigned Judge of the Sessions
of the Peace in and for the said city of Montreal, in the presence
and hearing of Samuel Eugene Lackey, Squire Turner Teavis,
Alamanda Pope Bruce, Charles Moore Swager, George Scott,
Bennett H. Young, Caleb McDowall Wallace, James Alexander
Doty, Joseph McGrorty, Samuel Simpson Gregg, Dudley Moore,
Thomas Bronsdon Collins, Marcus Spurr, and William H.
Hutchinson, who are now charged before me, upon complaints
made under oath before me under the provisions of the ‘Treaty
between Her Majesty the Queen and the United States of
America, and our Statutes in that behalf made, with having com-
mitted within the jurisdiction of the United States of America,
the following crime mentioned in the Treaty between Her Majesty
the Queen, and the United States of America, to wit:—For
that they, the said Samuel Eugene Lackey, Squire Turner
Teavis, Alamanda Pope Bruce, Charles Moore Swager, George
Scott, Bennett H. Young, Caleb McDowall Wallace, James Alex-
ander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dudley
Moore, Thomas Bronsdon Collins, Marcus Spurr and William H.
Hutchinson, on the nineteenth day of October last past, at the town
of St. Albans, in the State of Vermont, one of the United States
of America, and within the jurisdiction of the said United States of
America, being then and there armed with certain offensive
weapons and instruments, to wit, pistols commonly called revolvers,
loaded with powder and balls and capped, in and upon one Albert
Sowles, feloniously did make an assault, and him, the said Albert
Sowles, in bodily fear, and in danger of his life, did then and there
put; and a certain sum of money, to wit, to the amount of nine thou-
sand dollars current money of the said United States of America,
and of the value of nine thousand dollars current money afore-
said ; also certain valuable securities, to wit, certain United States
Treasury Notes to the amount and value of twenty-nine thou-
sand six hundred and fifty dollars current money aforesaid; certain
promisory notes of the United States of America, bearing five per
cent. interest, called five per cent. legal tenders, to the amount
and value of fourteen thousand dollars; and certain promisory
notes of the said United States of America, called five per cent.
compound interest notes, to the amount and value of one thousand
dollars current money afores aid, of the moneys and property of the
Kirst National Bank of St. Albans, at St. Albans aforesaid,—a
body corporate, constituted and recognized by the laws of the said
United States of America,—from the person, custody, and posses-
ion, and against the will, of the said Albert Sowles, and in his
presence, then and there, feloniously and violently, did steal, take,
and carry away, against the form of the Statutes of the said State
of Vermont, in such case made and provided, and against the
peace and dignity of the said State.
This deponent, Henry Nelson Whitman, on his oath saith:—I
recognize among the prisoners, now in Court, the following, naming
themselves respectively, —Samuel Kugene Lackey, Marcus Spurr,
James Alexander Doty, Joseph MeGrorty, Alamanda Pope Bruce,
and Thomas Brondson Collins. I first saw four of them, viz.: Samuel
Eugene Lackey, Marcus Spurr, Alamanda Pope Bruce, and Thomas
Brownston Collins, at Stanbridge, aforesaid, during the night of
the 19th, and, to the best of my knowledge, about one o’clock on
the morning of the 20th day of October last past. ‘lwo of them,
namely, Bruce and Spurr, were in bed, at a tavern kept in the
village of Stanbridge, by one William Elder; and I made prisoners
of them, and put keepers over them. ‘The prisoner, Collins, came
into Henry Bacon’s hotel, in Stanbridge East, between twelve
and one o’clock in that night. I was in the hotel at the time, and
ordered him into custody, and placed keepers over him and the
prisoner, Samuel Eugene Lackey, was arrested on the side-walk
near Mr. Bacon’s hotel. He was also arrested by my orders, in
my presence, and brought into Mr. Bacon’s hotel. ‘They were all
dressed in common civilians’ dress. The two others, namely, James
Alexander Doty and Joseph McGrorty, were arrested by me the
following night, that is to say about two o’clock in the morning, of
the 21st day of October last. ‘They were then sleeping in a barn,
in the first Concession of Dunham, in the same district ; they were
also dressed in civilians’ clothes. These two last men were armed,
each having a Colt revolver. The first two, namely, Bruce and
Spurr, were also armed when arrested, having each two revolvers.
The remaining two prisoners, before named, were not armed.
These persons so arrested had their clothes spotted with mud,
and some of them having even mud on their faces, having the
appearance of persons who had travelled rapidly over mudd
roads. I adopted the precaution of searching the whole of these
men when they were arrested, telling them they were arrested for
robbing the St. Albans bank. I found money upon all of them;
their pockets were all filled. Upon the arrest of the said Bruce and
Spurr, at Elder’s tavern, the following packages of money, to wit, one
sand
f the
l—a
» said
ysSeS-
n his
take,
State
t the
1:—lI
ming
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ruce,
umuel
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n the
soners
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welye
, and
d the
-walk
rs, in
e all
ames
the
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arn,
were
med,
and
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the
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for
bm
nd
One?
33
package of bank bills of the St. Albans bank, containing one thou-
sand dollars, and marked on the cover with the initials, ““C. N. B.,’’
being the initials of Cyrus Newton Bishop, the teller of the St.
Albans bank ; another package of bank bills of the same bank, of
the denomination of twenties, bearing also on the cover the initials of
Mr. Bishop ; also another package of United States notes, com-
monly called greenbacks, to the amount of nine hundred dollars, like-
wise counted and bearing the initials of Mr. Bishop, and another
package of the same, to the amount of one thousand dollars ; another
package of bank bills of the St. Albans bank, to the amount of one
thousand dollars, and initialed on the cover, as above stated ; anoth-
er package of bank bills of the same bank, to the amount of one
thousand dollars, marked on the cover in the same manner; another
package of bills of the same bank, to the amount of one thousand
dollars, likewise initialed on the back; another package of bills of
the same bank, of the denomination of fifties, to the amount of one
thousand dollars, likewise marked on the cover ; also another pack-
ave, containing one thousand dollars of bills, of the same bank ;
eleven other packages of bills of the same bank, each containing
one thousand dollars, and marked in the same way on the back ;
also a package of bills of the same bank, to the amount of five
hundred dollars ; another package of the same, to the amount of
four hundred dollars; another of the same, to the amount of four
hundred and ninety-five dollars ; another of the same, to the amount
of one hundred dollars. Many of the packages had no bands on
them, and others had, and Mr. Bishop put new bands on them,
and marked them, having counted them ; and likewise a package of
United States Treasury notes, commonly called seven and three-
tenths Treasury notes, to the amount of fourteen thousand eight hun-
dred dollars. The said Bruce and Spurr, as I have stated, were in
bed. When I entered their bed-room, they were sleeping together
in the same bed. These packages of money and Treasury notes I took
out of the pockets cf their coats and trousers, and some packages I
took loose under their pillows, from under their heads; and I also
found in their pockets a few dollars in Aimerican half dollars.
These packages of bank bills, and treasury notes, and silver I have
now handed to Guillame Lamothe, Esq., chief of police, order by
of the judge of sessions. I found upon the prisoners, Lackey and
Collins, when I searched them in Mr. Bacon’s hotel: two packages
of bank-bills of American banks: one containing nineteen hundred
and eighty-four dollars, in the other package, including green-
backs and New England bills, to the amount of two thousand six
hundred and ninety-five dollars, which I now hand over to the
said chief of police, by order of the judge of sessions.. They had
these packages of money and greenbacks in their pockets. I found
Cc
34
upon the prisoners, James Alexander Doty and Joseph McGrorty,
upon my arresting them in the barn, packages of bank-bills, one of
which packages now produced by me, contains five thousand two
hundred and sixty dollars; another package of bank-bills and
greenbacks, marked as containing three thousand and sixty-five
dollars; another package of bank-bills, marked as containing
seventeen hundred dollars ; one package principally greenbacks,
and a few bank-bills, marked as containing fourteen hundred dollars ;
one St. Albans bank bill for twenty dollars ; and twelve hundred
dollars of United States five-twenty bonds, which I now produce and
hand over to the said chief of police, by order of the judge of ses-
sions. I found these packages of money and United States notes
in the pockets of the said Doty and McGrorty, when I so searched
them in the ssid barn.
And my further examination is continued till to-morrow morning
at ten o’clock, and I have signed
HW. N. WHITMAN.
Sworn and taken before me this
3rd day of November, 1864.
Cuas. J. Courson, J.S.P.
And on this day the fifth day of November in the year of our
Lord one thousand eight hundred and sixty-four, the above depon-
ent Henry Nelson Whitman appears before the undersigned Charles
Joseph Coursol, Esquire, Judge of the Sessions of the Peace in and
for the city of Montreal and having been sworn in the presence of
the above named prisoners deposeth and saith :
Upon the arrest of the prisoners, Bruce and Spurr, at William
Elder’s tavern, I found in their possession four revolvers, which
I suppose to be of Colt’s manufactory, each revolver being
covered with leather belts or holsters. ‘These revolvers I now
produce, and they are in the same state now as when I found
them in the possession of the said Bruce and Spurr. They had
them under their pillows in the bed they were sleeping in.
Each revolver had six chambers, some of them loaded and cap-
ped, and a few of them having the appearance of having been
discharged. These revolvers I now mark with my initials on the
belts for the purpose of identification, and now hand them over to
the chief of police, by order of the judge of session. I found no
arms upon the prisoner Collins, nor upon the prisoner Lackey. I
found, upon the arrest of the prisoners, Doty and McGrorty, in the
barn, and under their clothing thrown upon the hay, two revolvers
of a similar description, contained each in a leather belt, and I now
produce them in the same state as I found them, and I now mark
them in the same manner for identification, and give them to the
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30
said chief of police, by the same order. These revolvers are also
loaded, and almost all the chambers are capped. From Stanbridge
East to St. Albans, in the State of Vermont, there is a direct road,
and the distance is about twenty-five miles, and from the place
where Doty and McGrorty were arrested to St. Albans, there is
about the same distance ; but the barn, where they were secreted,
is about a distance of eighty rods from the road leading from
Stanbridge to Dunham Flats. I took possession of the revolvers,
as well as of all the money I found in the possession of the said
prisoners, and kept them safely until I produced them before this
Court. When I arrested the said Bruce and Spurr, one of them
asked me whether I was a British officer, and I answered that I
was a magistrate, and that I arrested them for robbing the St.
Albans banks. One of them, whom I believe to be Bruce, said, we
are Confederate soldiers, and that the money they had captured from
St. Albans, was in retaliation for the destruction of private property
by Sheridan, in the Shenandoah valley. At the time this conver-
gation took place, I had taken possession of the money found upon
them. They then asked me to telegraph to C. C. Clay, at Montreal,
to inform him that they were captured, and to do his best for them.
They refused giving their names to me. I informed them tha.
there was no telegraphic communication from that place ; that they
would as soon get an answer by letters, and the next day they
wrote a letter, addressed, as I believe, to C. C. Clay. They told
me that the said Clay was a Confederate agent at Montreal. The
bank bills, spoken of by me, and which I found in their possession,
they both acknowledged to have taken out of the banks at St.
Albans. In conversing with me, while they were in my charge,
they also told me how they got away from St. Albans. ‘hey were
both together in the same room with me at Elder’s tavern. They
said they had taken horses wherever they could find them in St.
Albans; had put blankets on, and that many had no saddles on ;
and that they rode off to Canada, and that having no saddles, were
badly chafed for riding so long; that when they got to Canada,
they had abandoned their horses, in order to avoid pursuit. The
morning following their arrest I found three horses loose, on the main
road, without saddles or bridles. I secured them, and they were
shortly afterwards claimed by their owners, residents of St. Albans.
This is about all Bruce and Spurr said to me; and I made use of no
threats, nor held out any inducements to them to make such state-
ments ; they were freely and voluntarily made. Upon the arrest
of the prisoner Collins, and during the time he was in my charge,
he made similar statements to me as those made by the other
prisoners, as also did the prisoner Lackey. The prisoners Doty
and McGrorty made to me similar statements, and admitted that
36
the bank bills and securities taken from them, and produced by me
before this Court, had been taken by them from the St. Albans
banks, with the exception of some small change in their wallet,
which they said were their private moneys, and which I have this
day returned to them, by order of the judge of the sessions. The
statements of the four last prisoners referred to, were also voluntarily
and freely made. ‘T'wo or three days elapsed between the period
of the first arrest and my handing over the six prisoners to the
judge of sessions. They did not tell me where they had got their
arms. Part of the last day these prisoners were in my custody, I
had them all together in one room. They appeared to me to know
each other very well, and seemed to be very glad to meet.
Previously I kept them separate—two at one tavern, and two at
another ; and it was at their own special request to be permitted
to meet together in one room, that I granted that request. I re-
member saying in the presence of, I believe, four of them, that
they had shot two or three persons in St. Albans, namely, C. H.
Huntingdon and one Morrison, and that it was not expected that
the said Morrison would live. They said that they were sorry, and
that their orders were not to take life, except in their own self-
defence. They all admitted to me that there were twenty-one of
them altogether at St. Albans.
The foregomg deposition having been read in the presence of
the prisoners so charged the deponent declares the same to contain
the truth and hath signed
H. N. WHITMAN.
Sworn before me at Montreal, this
5th November, 1864.
Cuas. J. Courso, J.S.P.
The following answers given upon Cross-examination by Mr.
Kerr, counsel for the prisoners and in their presence.
Nothing but a verbal complaint, not on oath, had been made
to me previous to my arresting the six prisoners mentioned in my
examination-in-chief. This complaint was made to me between
eleven and twelve o’clock at night by one Smith and Holmes.
They told me there was a band on the way to this place, that is
Stanbridge, who had robbed the banks at St. Albans, and shot
men down ‘in the streets. I said then there was no time to make
out any writings, but I would proceed in person to arrest them,
for I would not delegate any other person to arrest them, for
fear they would abuse that power. I supposed at that time I
had authority under the Treaty Act, but I have since learned it
has been amended. I was informed by the parties who gave me
hy me
\lbans
vallet,
ve this
The
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37
the information that the band of men who had robbed the banks
must have in their possession a large amount of bank notes and
securities, and the people of St. Albans were in pursuit of them.
The said men did not tell me that the persons who had taken the
money from the banks had declared that they were Confederate
soldiers. I did not think about the money when I determined upon
going to superintend the business, but I fancied that there might
be some infraction of our laws by them, or the party in pursuit.
About six men were with me when I entered Bruce and Spurr’s
room in Elder’s tavern. They were those whom I had called upon
to assist me. The money was taken from them in the bed-room.
Some of it I took out of their pockets, and the other was taken
from under their pillows, by a man of the name of Martindale, in
my presence, and handed over to me immediately. I took it right
over to the bank and had it counted by the director of the bank.
I helped him do so, and one Mr. Blynn, a magistrate, also helped
him. It was then rolled up and sealed in their presence. I think
it was a little after two o’clock in the morning when the prisoners
Bruce and Spurr were arrested. I do not think that half an hour
had elapsed between their arrest and the counting of the money.
Mr. Blynn accompanied me to the bank from Elders; C. H.
Baker also. I did not count the money in the presence of the
prisoners from whom it was taken. A person of the name of Knight
who assisted me handcuffed the prisoners Bruce and Spurr. ‘The
next day I took handcuffs from two of the prisoners at Elder’s
and told Mr. Knight to take them off from the others. Collins
was taken in Bacon’s hotel, and was searched in a room. Soon
after his arrest I went to arrest some more, but as they had gone
away I went back to the room where I had left Collins under
keepers, and as I entered the room some one had commenced pull-
ing the money out of their pockets and laying it upon the table. I
told them to stop for I must see from whom it is taken, and this
money must be kept by itself. I then continued the search myself
in person, and got what I supposed to be all he had; but found on
the next day three one hundred dollar bills, which he, Collins,
handed out to me, stating at the time, it was his private funds. I
got from Collins in bills and greenbacks the amount of two thousand
six hundred and ninety-five dollars. When I first saw Collins he
had a satchel about his shoulders. When I returned and saw the
men in taking the money out of Collins’ pockets, he, (Collins,) I
believe, complained that money had been taken by some of the
men from his satchel.
@uestion.—Did you or did E. C. Knight arrest the prisoners
Bruce and Spurr ?
Answer.—I had previously sent for Mr. Knight to come and
a jp ie FY TR eons
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38
assist me to arrest those men. He, and four or five others, went
with me up to the door where they were sleeping. Knight went
to knock at the door, and I ordered him away from the door.
Another person, I think Martindale, Lurst the door, and he,
Martindale, Cross, and I went in first, and the rest that were with
me followed, and I told the prisoners that they were arrested for
robbing the St. Albans banks; Martindale laid his hand upon them
first, and then Knight jumped upon the bed and put handcuffs
on them. I took some money in a roll from Collins’ satchel.
The two packages of notes now produced, marked as containing
one, two thousand six hundred and ninety-five dollars, was taken
from Collins’ pocket ; and the other, marked as containing nineteen
hundred and eighty-four dollars, was taken from Lackey’s pockets.
The money I took from Collins’ satchel is included in the package
marked as containing two thousand six hundred and ninety-five
dollars. The reason that the prisoners assigned for not giving me
their names was that they were of respectable parentage, and that
they did not wish their names to go back to their friends as having
connection in this raid, and for the reason that it would give their
friends unpleasant feelings. I swear that I have produced all the
moneys and other effects either taken by me from the prisoners, or
delivered to me by other people as having been taken from the
prisoners, with the exception of a satchel. The prisoners’ counsel
declares having no further questions; and this deposition having
been read in the presence and hearing of the said prisoners, the
deponent declares it contains the truth, and hath signed
(Signed) H. N. WHITMAN.
Sworn, taken, and acknowledged )
before me, on the day, month,
and year, and at the place, here-
inbefore mentioned.
(Signed) Cuas. J. Courson, J.8.P.
st ME Sa oi sais Ub ea
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PROVINCE OF CANADA,
District of Montreal.
Sawiees = POLICE COURT.
Examination of John O'Leary, of the city of Montreal, in the
District of Montreal, detective police officer, taken on oath this 7th
day of November, in the year of our Lord one thousand eight
hundred and sixty-four, at the Police Office in the Court-house, in
the city of Montreal, in the District of Montreal aforesaid, before
the undersigned Judge of the Sessions of the Peace in and for the
said city of Montreal, in the presence and hearing of Samuel
Eugene Lackey, Squire Turner Teavis, Alamanda Pope Bruce,
Charles Moore Swager, George Scott, Bennett H. Young, Caleb
McDowall Wallace, James Alexander Doty, Joseph McGrorty,
Samuel Simpson Grege, Dudley Moore, Thomas Bronsdon Collins,
Marcus Spurr, and William H. Hutchinson, who are now charged
before me, upon complaints made under oath before me under the
provisions of the Treaty between Her Majesty the Queen, and the
United States of America, and our Statutes in that behalf made,
with having committed within the jurisdiction of the United States
of America, the following crime mentioned in the Treaty between
Her Majesty the Queen, and the United States of America, to wit :—
For that they, the said Samuel Eugene Lackey, Squire Turner
Teavis, Alamanda Pope Bruce, Charles Moore Swager, George
Scott, Bennett H. Young, Caleb McDowall Wallace, James Alex-
ander Doty, Joseph MeGrorty, Samuel Simpson Gregg, Dudley
Moore, Thomas Bronsdon Collins, Marcus Spurr, and Wilham I.
Hutchinson, on the nineteenth day of October last past, at the town
of St. Albans, in the State of Vermont, one of the United States of
America, being then and there armed with certain offensive weapons
and instruments, to wit: pistols commonly known and called revol-
vers, loaded with powder and balls and capped, in and upon one
Cyrus Newton Bishop, feloniously did make an assault and him the
said Cyrus Newton Bishop in bodily fear and in danger of his life,
then and there feloniously did put, and a certain sum of money, to
wit: to the amount of seventy thousand dollars current money of
the said United States of America, and of the value of seventy
thousand dollars current money aforesaid, of the moneys and pro-
perty of the bank of St. Albans, a body corporate, constituted and
recognized by the laws of the said State of Vermont, and the said
United States of America, from the person and custody, and pos-
session, and against the will of the said Cyrus Newton Bishop, then
and there feloniously and violently did steal, take, and carry away
against the form of the Statutes of the said State of Vermont, in such
case made and provided, and against the peace and dignity of the
said State. The deponent, John O'Leary, upon his oath deposeth
Pa eS eae yaaa
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—
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40
and saith: On the twentieth of October last, I arrested one of the
prisoners, who now gives his name as George Scott, and who is under
examination at Farnham, which is distant from St. Johns in the
District of Iberville, about nineteen miles. I was out there by
the instruction of the chief of police, Mr. Lamothe, to arrest, if I
could, the persons who had broken into the banks of St. Albans,
aforesaid ; and it was whilst I was on duty there that I arrested the
said Scott. At the time I arrested him he was in the railroad
station, and after his arrest I put him in the custody of William
Donohue, a sergeant of the government police force of the city of
Montreal ; but before I made him my prisoner, I asked if he was
from Montreal, and he said he was. I then asked him from
what part of Montreal; he said that he resided at the head of St.
Dominique street ; I asked if he knew any person there, and he said
he did not. I then asked himifhe knew me, and he replied he did
not; upon which I called him outside, and told him, that I was a
detective officer from Montreal ; I then searched him, and found in
his possession the sum of two thousand eight hundred and fifty-nine
dollars and thirty-one cents, composed of promissory notes of the
United States of America (commonly called greenbacks), bank bills
issued by different banks in the said United States, gold and silver
coin, and one dollar and eighty cents in the postal currency of the said
States, and five cents and one penny of Canadian currency which I
now produce at this examination. After taking possession of this
money, I counted it, and having sealed it in a paper package, I tied it
in a pocket handkerchief, and delivered it to Guillaume Lamothe,
Esq., chief of police. On Saturday last, the fifth of November instant,
I received the said package from the said chief of police, sealed
and tied in the manner and form as it was when I delivered it to
him. I then opened the said package in the presence of Cyrus
Newton Bishop, now present, for the purpose of letting him see its
contents with a view to its identity, after which I put my private
mark upon it, and again handed it over to the said chief of police,
from whom I have this day received it in the same order and con-
dition in which it was whenI gave it to him upon the said fifth
instant, and it has upon it the private mark of which I have just
spoken. At the time I arrested the said Scott, I asked him his
name, and he told me it was George Williams: I told him then that
I arrested him upon suspicion of his having been one of the persons
who had broke into the banks, at St. Albans, aforesaid ; he replied
that he was a Confederate soldier, and requested our protection.
When I accused him of having broken into the banks of St. Albans,
he neither admitted or denied having done so. He was dressed in
civilian’s clothes and appeared to be much fatigued. He had no
fire-arms about him, but had a map of Canada. ‘The prisoner, who
L ]
41
‘the now gives his name as George Scott, is the same person whom I
der arrested in Farnham, and who gave me his name as George Williams,
the and whom I put into the custody of said sergeant William Donohue.
» by The foregoing deposition having been read over in the presence
if I x of the prisoners so charged, the deponent declares the same to con-
ans, ; tain the truth, and hath signed.
the fe (Signed) JOHN O'LEARY.
road ; Sworn before me at Montreal, this )
liam : Tth November, 1864. j
y of Cuas. J. Courson, J.S.P.
was
ie The following evidence is given upon cross-examination, by Mr.
Ms bd Laflamme, counsel for the prisoners, and in their presence :
"i d ' The prisoner Scott did not to my knowledge claim any portion of
aia Ba the money taken by me from him as aforesaid as his private pro-
; & perty.
ad in a The prisoners counsel declare having no further questions to put
ie 2 to the deponent, and this deposition having been read in the pre-
a a sence of the said prisoners, the deponent declares it contains the
om a truth, and hath signed.
JOHN O'LEARY.
Sworn, taken, and acknowledged, on the
day, month, and year, hereinbefore
mentioned, before me.
(Signed) Cuas. J. Coursot, J.8.P.
PROVINCE OF CANADA, 2
District of Montreal,
POLICE COURT.
The examination of Roswell Albert Ellis, of the village of Water-
loo, in the County of Shefford, in the District of Bedford, Esquire,
Justice of the Peace, now in the city of Montreal, taken on oath
this eighth day of November, in the year of our Lord one thousand
eight hundred and sixty-four, at the Police Office in the Court- -house,
in the city of Montreal, in the District of Montreal aforesaid, before
the undersigned Judge of the Sessions of the Peace in and ‘for the
said City of Montreal, i in the presence and hearing of Samuel
Eugene ‘Lackey, Squire Turner Teavis, Alamanda Pope Bruce,
Charles Moore Swager, George Scott, Bennett H. Young, Caleb
McDowall Wallace, “James Alexander Doty, Joseph MeGror ty,
Samuel Simpson Gregg, Dudley Moore, Thomas Bronsdon Collins,
Marcus Spurr, and William H Tlutchinson, who are now charged
before me, upon complaints made under oath before me under ‘the
provisions of the 'l'reaty between Her Majesty the Queen. and the
United States of America, and our Statutes in that behalf made,
with having committed within the jurisdiction of the United States
of America, the following crime mentioned in the Treaty between
Her Majesty the Queen, and the United States of America, to wit:
—For that they, the said Samucl Eugene Lackey, Squire Turner
Teavis, Alamanda Pope Bruce, Charles Moore Swager, George
Scott, Bennett H. Young, € Caleb McDowall Wallace, James Alex-
ander Dotv, Joseph MecGrorty, Samuel Simpson Greee, Dudley
Moore, Tnomas Bronsdon Collins, Marcus Spurr, and William H.
Hutchinson, on the nineteenth day of October last past, at the town
of St. Albans, in the State of Vermont, one of the United States
of America, being then and there armed with certain offensive wea-
pons and instruments, to wit: pistols commonly known and called
revolvers, loaded with powder and ball and capped, in and upon
one Cyrus Newton Bishop feloniously did make an assault, and him
the said Cyrus Newton Bishop in bodily fear and in danger of his
life, then and there feloniously did put, and a certain sum of money,
to wit: to the amount of seventy thousand dollars current money
of the said United States of America, and of the value of seventy
thousand dollars current money aforesaid, of the moneys and pro-
perty of the bank of St. Albans, a body corporate, constituted and
recognized by the laws of the said State of Vermont, and the said
United States of America, from the person and custody, and pos-
sesssion, and against the will of the said Cyrus Newton Bishop,
then and there feloniously and violently did steal, take, and carry
away against the form of the Statutes of the said State of Vermont,
in such case made and provided, and against the peace and dignity
ter-
lire,
9a th
sand
USC,
fore
the
nuel
uce,
‘aleb
ity,
ins,
rged
» the
l the
ade,
tates
veen
wit:
rer
43
of the said State. The deponent, Roswell Albert Ellis, upon his oath
deposeth and saith :—About three o’clock on the morning of the
twenty-first day of October last past, I was informed that a person
suspected of being engaged in the St. Albans raid was stopping
at Hall’s hotel, at the railroad station, in Waterloo aforesaid ; at
about six o’clock on the same morning, I found this person in the
railroad cars, having taken passage for Montreal, and I now see
him, and recognize him by the name of Dudley Moore, as one of
the prisoners here under examination; I arrested the said Moore
and caused him to be taken to Hall’s hotel. A short time after-
wards, about ten minutes, the money contained in the package
which I now have before me, was handed to me by Edward Lang-
ley, in presence of Charles 8. Martin, a bailiff, who took the said
Dudley Moore, and also in presence of David Frost, junior. After
receiving the money, I counted it in the presence of these persons,
and found that it amounted to nine hundred and fifty dollars, and
was contained in ten packages, nine of which contained one hun-
dred dollars each, the other fifty. The said ten packages were
tied together with a paper band. I was also handed by either the
said Langley or Martin a small wallet, which is now produced, and
which I found contained a fifty dollar promissory note, of the said
United States of America, commonly called greenbacks ; there
was also a ten dollar note issued by the Confederate States. The
said nine hundred and fifty dollars, which I received from the said
Langley, consists altogether of promissory notes of the United
States, commonly called greenbacks. After having, as already
stated, counted the said money, I rolled it in a handkerchief, put it
up in a paper parcel, sealed it, and delivered it to the said Charles S.
Martin ; it is the same parcel which has this moment been placed
in my hands by Guillaume Lamothe, Esq., Chief of Police, and I
find it in the same order and condition in which it was when I deliv-
ered it to the said Charles 8. Martin, and containing the amount of
money which I counted and put up in the same. Upon the twenty-
first day of October last aforesaid, I put the said Dudley Moore
into the custody of Charles Hibbard, a bailiff, to be by him con-
veyed to St. Johns gaol; but before he left I had a conversation
with the said Moore, respecting the said raid; he stated to me in
the course of our conversation that he was engaged in the raid,
that he did not go into any of the St. Albans banks, but that he
acted as a guard on the outside for those that did goin. At the
same time that I received the said sum of money, I also received
from the said Langley and Martin three loaded revolvers, which I
afterwards returned to the said Martin; the prisoner was dressed
in civilian’s clothes. When the prisoner stated to me that he had
been on guard outside the bank in St. Albans, I did not hold out
tobe =
—
sy 2 a
44
to him any inducement to make such statement, nor did I use any
threats; the admission by him was entirely voluntarily.
The foregoing deposition having been read over in the presence
of the prisoners so charged, the deponent declares the same to con-
tain the truth, and hath signed.
R. A. ELLIS.
Sworn before me at Montreal, |
this 8th November, 1864. |
(Signed) Cuas. J. Courson, J.8.P.
The foregoing deposition having been made and read in the pre-
sence and heari ing of the prisoners, Samuel Eugene Lackey, Squire
Turner ‘Teavis, Alamanda Pope Bruce, Charles Moore Swager,
George Scott, Bennett H. Young, Caleb McDowall Wallace, James
Alexander Doty, Joseph McGrorty, Samuel Simpson Gregg,
Dudiey Moore, Thomas Bronsdon Collins, Marcus Spurr, and
William H. Hutchinson, are asked if they have any questions +o
put to the deponent, and the following evidence is given in cross-
examination in presence of the prisoners, by their counsel, Mr.
Abbott :
I arrested the said Moore on verbal information; no infor-
mation upon oath was made before me; two young men, named
Manson and Farmer, gave me information that there was a
young man at Hall’s “hotel that they suspected of being one
of ‘he raiders, because he had offered his horse for sale for twenty
five dollars of the United States money. It was upon this infor-
i mation given verbally that I went and arrested the prisoner. I did
i not search him, but he was searched before I got over to the hotel.
I got what was said to be found upon him from Mr. Langley. I
| got nothing at all from himself. There wasa five dollars in gold in
ul the wallet, and I saw a pocket knife, but did not take it in my pos-
session. ‘The wallet I speak of is the one mentioned in my exami-
nation-in-chief; I think Martin took the pocket-knife along with the a
pistol. ‘The five dollars in gold are now in the wallet. The pri- ¥
i souers’ counsel, Mr. Abbott, having declared he had no further 4
i questions to put to the deponent, this examination is closed. 4
(Signed), R. A. ELLIS. ‘
i Montreal, 8th November, 1864.
i (Signed) - Cuas. J. Coursou, J.S.P. :
ce
‘
ik
i
|
;
i
‘
a
3
;
PROVINCE OF CANADA, 2
5
St. Albans, in the State of Vermont, one of the United States of
America, merchant’s clerk, now in the city of Montreal, taken on
oath this 8th day of November, in the year of our Lord one thou-
sand eight hundred and sixty-four, at the Police Office in the Court-
house, in the city of Montreal, in the District of Montreal aforesaid,
before the undersigned Judge of the Sessions of the Peace in and
for the said city of Montreal, in the presence and hearing of Samuel
Eugene Lackey, Squire Turner Teavis, Alamanda Pope Bruce,
Charles Moore Swager, George Scott, Bennett H. Young, Caleb
McDowall Waliace, James Alexander Doty, Joseph McGrorty,
Samuel Simpson Grege, Dudley Moore, Thomas Bronsdon Collins,
Marcus Spurr, and William H. Hutchinson, who are now charged
before me, upon complaints made under oath before me under the
provisions of the Treaty petween Her Majesty the Queen, and the
Uuited States of America, and our Statutes in that behalf made,
with having committed within the jurisdiction of the United States
of America, the following crime mentioned in the Treaty between
Her Majesty the Queen, and the United States of America, to wit :
—For that they, they said Samuel Eugene Lackey, Squire Turner
Teavis, Alamanda Pope Bruce, Charles Moore Swager, George
Scott, Bennett H. Young, Caleb McDowall Wallace, James Alex-
ander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dudley
Moore, Thomas Bronsdon Collins, Marcus Spurr, and William H.
Hutchinson, on the nmeteenth day of October last past, at the town
of St. Albans, in the State of Vermont, one of the United States
of America, being then and there armed with certain offensive
weapons and instruments, to wit: pistols commonly known and
calivd revolvers, loaded with powder and balls and capped, in and
upon one Cyrus Newton Bishop, feloniously did make an assault and
him the said Cyrus Newton Bishop in bodily fear and in danger of
his life, then and there feloniously did put, and a certain sum of
money, to wit: to the amount of seventy thousand dollars current
money of the said United States of America, and of the value of
seventy thousand dollars current money aforesaid, of the moneys and
property of the bank of St. Albans, a body corporate, constituted
and recognized by the laws of the said State of Vermont, and the
said United States of America, from the person and custody, and
possession, and against the will of the said Cyrus Newton Bishop,
then and there feloniously and violently did steal, take, and carry
away against the form of the Statutes of the said State of Vermont,
in such case made and provided, and against the peace and dignity
’
—<
Retna a TS ea
oe
=
SE ERE Fenn Sin
46
of the said State. The deponent, George Kdwin Fairchild, upon
his oath deposeth and saith: I was at St. Albans aforesaid, on the
[9th day of October last past; I saw no one shot, and saw no acts
of violence by the men in arms. Between the hours of three
and four of the clock on that day, Twas standing at a distance of
about ten or fifteen rods from the said St. Albans bank, when I
saw about twenty men armed with revolvers. They were all on
horseback, with the exception of two or three, who seemed as if
they were looking for horses. One of the party so armed and on
horseback approached me, and demanded from Edward Nettleton,
who was then in conversation with me, his hat. He demanded it
a second time, at the same moment drew two revolvers, when the
said Nettleton replied that he could not have his hat. This person
who demanded it said he wanted it for one of his party who had
lost his hat. Nettleton was next told by the person demanding
his hat, that unless he gave it to him damned quick he would shoot
him, and then cocked both revolvers, and pointed them at said
Nettleton. At this moment he was within six feet of him. Nettleton,
seeing the revolvers cocked, put his hand under his coat as if with .
the intention of drawing an arm therefrom. Upon seeing this, the
gentleman on horseback asked first if he had any arms, and also
to show him the inside of his coat, remarking at the same time that.
if he did not he would shoot him through. My further exami-
nation is continued till to-morrow morning at ten o’clock, and I
have signed
GEORGE E. FAIRCHILD.
Sworn, taken, and acknowledged, \
before ime, on the day, month,
and year, and at the place
aboved mentioned.
(Signed) Cuas. J. Coursou, J.S.P.
On the 9th day of November, in the year of our Lord one thou-
sand eight hundred and sixty-four, the deponent above named re-
appear before me, the undersigned Charles Joseph Coursol, Esquire,
Judge of the Sessions of the Peace in and for the city of Montreal,
and being resworn, deposeth and saith: I then told Nettleton
not to stand an insult. At this the man on horseback pointed his
revolvers at me, and asked me if I had any arms with me. I told
him I had none; and I hoped he would not shoot an unprotected
person. At this moment another of the party, the one who needed
the hat, rode up and presented two revolvers at the said Nettleton,
telling the other person on horseback not to parley, but to shoot the
damned cuss. At this time there was a cry for help from one of
their party, upon which the two persons referred to rode off in tho
upon
1 the
acts
three
ce of
ien
ll on
as if
don
eton,
ed it
n the
son
had
iding
shoot
said
leton,
‘with
8, the
| also
47
direction where help was called for. I now recognize and point
out as having been among the army party, [ saw at St. Albans
aforesaid, on the said 19th day of October last, five of the prisoners
now under examination, who give their names as Bennett H. Young,
Charles Moore Swager, Joseph MeGrorty, Caleb McDowall Wallace,
and George Scott. ‘These five persons I saw on horseback, armed
ach with two revolvers. ‘The two first persons to whom I have
referred, and who presented revolvers at said Nettleton and myself,
were anc still are unknown to me. One of these two persons was
called the Captain. After he had left Nettleton and myself, I next
saw him at about two rods from the St. Albans bank, where nearly
the whole party had assembled, numbering from fifteen to twenty.
They were all on horseback, armed with revolvers. I then heard
the person called Captain call upon them to form line, which they
did, but not very regularly.
After having done so, the five prisoners whom I have pointed out
and identified fired several shots at the citizens. At the time the
line of which [ have spoken was being formed, I saw Captain Conger,
a citizen of St. Albans, approaching this party of armed men, with
a gun in his hand, followed by a few other citizens of the place.
He apparently was trying to fire a gun at them, but could not get
it off. It was then nearly four o’clock in the afternoon. After the
armed party, amongst whom were the said five prisoners identified
by me, had fired two or three rounds each, their horses became un-
manageable and they headed off in different directions. At the mo-
ment I saw one of the party, and the only one, on foot. The person
called Captain, seeing this man without a horse, rode up to Fuller’s
livery stable and ordered Mr. Fuller’s saddler to lead a horse that
was then standing there to the said person belonging to his party
who had not, as yet, got one. The saddler did as he was ordered and
led the horse called for and gave him to the said person whom I have
spoken of as having been on foot. The so-called Captain accom-
panied the saddler from the livery stable, keeping the revolver pointed
at him until the said horse was givenup. After this occurrence, there
was a considerable coufusion in the street, created by the said armed
party and the citizens. Shots were fired in different directions by
this armed party. After this, I saw the said armed party riding
off from the said town of St. Albans. They were the same party
Tsaw at the said St. Albans bank. They acted in concert with
each other from the beginning to the ena. ‘i'hey were all dressed
in civilian’s clothes. I know that the St. Albans bank aforesaid is
a banking institution, doing business at St. Albans aforesaid.
The conduct of the said armed party at the said St. Albans bank,
and elsewhere in the said town of St. Albans, was such as to put
the citizens in fear of their lives. I know that they put me in fear
Ss
a
Se
ae
Soe
+h ~ ama eS
Fg RL
Ae tar de ee rpc ain appa le F ergo
A tt ER te tee mn AO Fa te
% =
Pin
Satan oe er ee ee
nt monn eens ieee
dete
rape diithas eet oe
48
of losing my life. All the circumstances hereinbefore detailed by
me took place at St. Albans aforesaid, between the hours of three
and four of the clock on the said 19th day of October last past
aforesaid. When I said that I saw no act of violence committed,
I meant that I saw none actually shot or wounded.
The foregoing deposition having been read over in the presence
of the prisoners so charged, the deponent declares the same to
contain the truth, and hath signed
GEORGE E. FAIRCHILD.
Sworn, taken, and acknowledged,
before me, on the day, month,
and year, and at the place here- (
in before mentioned.
(Signed) Cuas. J. Courson, J.8.P.
The foregoing deposition having been made and read in thie pre-
sence of the prisoners, they are asked if they have questions to put
to the deponent, and they declare by their counsel, Mr. Kerr, that
they have, and the following evidence is taken in cross-examination.
I did not see townspeople fire upon the party. Captain Conger
was the only man I saw.
The prisoners counsel declare having no further questions to put
to the deponent, and this deposition having been read in the pre-
sence of the said prisoners, the deponent declares it contains the
truth, and hath signed
GEORGE E. FAIRCHILD.
Sworn, taken, and acknowledged,
on the day, month, year, and at
the place above mentioned.
(Signed) Cuas. J. Courson, J.8.P.
PROVINCE OF CANADA, } POLICE COURT.
District of Montreal.
The examination of Kdmund Conant Knight, of the township of
Stanbridge, in the District of Bedford, bailiff, now in the city of
Montreal, taken on oath this ninth day of November, in the year of
our Lord one thousand eight hundred and sixty-four, at the Police
Office in the Court-house in the city of Montreal, in the District of
Montreal aforesaid, before the undersigned Judge of the Sessions of
the Peace in and for the said city of Montreal, in the presence and
hearing of Samuel Eugene Lackey, Squire Turner Teavis, Alaman-
der Pope Bruce, Charles Moore Swager, George Scott, Bennett
H. Young, Caleb McDowall Wallace, James Alexander Doty,
led by
three
t past
nitted,
gence
ume to
LD.
ie pre-
to put
r, that
nation.
Conger
to put
ie pre-
ns the
LD.
NAN re Pile ge ag 5, SNR
SG Tc, jee tape ee ee
hip of
ity of
ar of
49
Joseph McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas
Bronsdon Collins, Marcus Spurr, and William H. Hutchinson, who
are now charged before me, upon complaints made under oath
before me under the provisions of the Treaty between Her Majesty
the Queen, and the United States of America, and our Statutes
in that behalf made, with having committed within the jurisdiction
of the United States of America, the following crime mentioned in
the T'reaty between Her Majesty the Queen, and the United States
of America, to wit:—For that they, the said Samucl Eugene
Lackey, Squire Turner Teavis, Alamanda Pope Bruce, Charles
Moore Swager, George Scott, Bennett H. Young, Caleb McDowall
Wallace, James Alexander Doty, Joseph MeGrorty, Samuel Simp-
son Gregg, Dudley Moore, Thomas Bronsdon Collins, Marcus Spurr,
and William H. Hutchinson, on the nineteenth day of October last
past, at the town of St. Albans, in the State of Vermont, one of
United States of America, being then and there armed with certain
offensive weapons and instruments, to wit: pistols commonly known
and called revolvers, loaded with powder and balls and capped, in
and upon one Cyrus Newton Bishop feloniously did make an assault,
and him the said Cyrus Newton Bishop in bodily fear and in danger
of his life, then and there feloniously did put, and a certain sum of
money, to wit: to the amount of seventy thousand dollars current
money of the said United States of America, and of the value of
seventy thousand dollars current money aforesaid, of the moneys and
property of the bank of St. Albans, a body corporate, constituted
and recognized by the laws of the said State of Vermont, and the
said United States of America, from the person and custody, and
possession, and against the will of the said Cyrus Newton Bishop,
then and there feloniously and violently did steal, take, and carry
away against the form of the Statutes of the said State of Vermont,
in such case made and provided, and against the peace and
dignity of the said State. The deponent Kdward Conant Knight,
upon his oath deposeth and saith: At about three o’clock in
the morning of the twentieth day of October last past, I arrested
two of the prisoners, Spurr and Bruce, at Elder’s hotel in Stanbridge.
They were in bed. I went to the door of’ the room where they were,
and I found it bolted. Martin Rice, of Stanbridge, was with me, also
one Cross, C. W. Martindale, and Irwin Briggs. There were others
present, but those were all that I called to assist me. Mr. Whitman
and Mr. Blynn, magistrates, were also present. I and my party
entered the room, and the magistrates came afterwards. I immedi-
ately jumped into the bed where the prisoners were, and told them
they were prisoners. ‘They asked me why they were arrested. I
told them it was for robbing the St. Albans banks. They asked
me if I wasa British officer, and I said I was a bailiff. I handcuffed
D
PF soap SEP oe
Fo iiny = gay, £5 ayo Emi evar teat eT
Sea ee
« = Spd
ES =
SSE ST SS
See pee re
ee :
50
them. I searched to see if I could find any arms, and I found four
revolvers between the feather-bed and straw-bed, and in the same
place a large quantity of bank-bills. I took the revolvers, and handed
them to Mr. Whitman, the magistrate, and also some of the bank-
bills ; the balance of the money I think was given by Martindale
toMr. Whitman. Mr. Whitman took away the money and the revol-
vers. [put the prisoners in charge of C. H. Barker and Irwin Briggs.
I didnot identify the money that I took. After conversation with Mr.
Whitman, I went back and searched the prisoners further, and found
in their possession four hundred and twenty-seven dollars and thirty-
five cents in bank notes, scrips, gold and silver. ‘This money I
gave to Guillaume Lamothe, Esq., chief of police, on the twenty-
fifth of October last. On the twentieth of October last, the prisoner
now calling himself Bruce, I understood to call himself at that
time Bennett, and the other one called himself Bruce. The pris-
oners on the same day stated in my presence that the money
which had been found in their possession they had got from the
bank in St. Albans. I saw at Stanbridge, on the same day, the
prisoners Collins and Lackey, and on the next day the prisoners
McGrorty and Doty. ‘These last two were arrested in a barn in
Dunham: in the possession of McGrorty and Doty, bank-bills of dif-
ferent kinds, some gold and silver, and some bonds, were found.
The prisoners, Spurr and Bruce, stated on the twentieth ©° October
last that they had come from Burlington, Vermont, th: ‘ous
morning, ina buggy to St. Albans. At the time the p .:sI
have referred to, made the several statements that I have mentioned,
no threats were made use of, nor inducements held out to procure
such statements, which were voluntary on their part.
The foregoing deposition having been read in the presence of the
prisoners so charged, the deponent declares the same to contain the
truth, and hath signed
E. C. KNIGHT.
Sworn, taken, and acknowledged, )
before me, on the day, month, |
and year, and at the place here- {
in before mentioned.
(Signed) Cuas. J. Courson, J.8.P.
And on this day, the 10th of November, in the year of our Lord
one thousand eight hundred and sixty-four the deponent above
named, reappeared before the undersigned Charles Joseph Coursol,
Esquire, Judge of the Sessions of the Peace, in and for the city of
Montreal, being re-sworn in the presence of the prisoners so charged,
the foregoing deposition is then and there read to the said deponent,
who declares upon oath that the same contains the truth; and
ol
our thereupon the said prisoners are asked whether they have any x
me 3 questions to put to the said depcenent, and they having answered that a
ded ‘they had, the following evidence is taken in cross-examination by ty
nk- Mr. Abbott, the prisoners’ counsel: I arrested the said prisoners i
lale without any warrant at all. I had no authority for arresting them, tk
vol- but the people of the village told me that a robbery had been com-
338. mitted at the St. Albans banks, and that they were afraid that they
Mr. were going to rob the Stanbridge bank. Iam not aware of any
und information on oath having been laid against these men. When [
rty- told them I was a British officer, they said it was all right. They
yl did not say anything else at that time ; but four or five hours after-
nty- wards they told me they were Confederate soldiers. I did not
aner count the money I took from them in the first instance. I did not
that examine it sufficiently to ascertain the amount, but I shoula suppose
pee there were several thousand dollars. When they told me they had
aH. got the money from the St. Albans banks, they also told me that they
the had got it on a raid, which they had made upon St. Albans, upon the
, the authority of the Confederate government, and that it would be
ners shown as such. It was about this time also that they told me that
a they were Confederate soldiers. They were asked if they were
"dif Jeff. Davis’ boys, and they said they were. These matters, and the
und. statements where they had got the money, all came out in the same
ober conversation.
“OUS The prisoners’ counsel declares that they have no further question
“3 I to put to the deponent, and this deposition having been read in the
ped, presence of the said prisoners, the deponent declares it contains the
pure truth, and hath signed
EK. C. KNIGHT.
Sworn, taken, and acknowledged, )
1e
before me, on the day, month, {
and year, and at the place be-
fore mentioned.
(Signed) Cas. J. Courson, J.S.P.
PROVINCE OF CANADA, ; POLICE COURT.
District of Montreal,
The examination of George Roberts, of the town of St. Albans,
in the State of Vermont, one of the United States of America,
clerk, now in the city of Montreal, taken on oath this ninth day of
November, in the year of our Lord one thousand eight hundred and
sixty-four, at the Police Office in the Court-house in the city of
Montreal, in the District of Montreal aforesaid, before the under-
signed Judge of the Sessions of the Peace in and for the said city
of Montreal, in the presence and hearing of Samuel Eugene Lackey,
Se ELON TTI AD al —
eae a
Ss
ern es
I: ASSES mn
—
————
a
52
Squire Turner Teavis, Alamanda Pope Bruce, Charles Moore
Swager, George Scott, Bennett H. Young, Caleb McDowall Wallace,
James Alexander Doty, Joseph McGrorty, Samuel Simpson Gregg,
Dudley Moore, Thomas Bronsdon Collins, Marcus Spurr, and
William H. Hutchinson, who are now charged before me, upon
complaints made under oath before me under the provisions of the
Treaty between Her Majesty the Queen, and the United States of
America, and our Statutes in that behalf made, with having com-
mitted within the jurisdiction of the United States of America, the
following crime mentioned in the Treaty hetween Her Majesty the
Queen, and the United States of America, to wit :—For that they,
the said Samuel Eugene Lackey, Squire Turner Teavis, Alamanda
Pope Bruce, Charles Moore Swager, George Scott, Bennett H.
Young, Caleb McDowall Wallace, James Alexander Doty, Joseph
McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas Brons-
don Collins, Marcus Spurr, and William H. Hutchinson, on the
ninetecath day of October last past, at the town of St. Albans, in
the State of Vermont, one of the United States of America, being
then and there armed with certain offensive weapons and instru-
ments, to wit: pistols commonly known and called revolvers, loaded
with powder and balls and capped, in and upon one Cyrus Newton
Bishop, feloniously did make an assault and him the said Cyrus
Newton Bishop in bodily fear and in danger of his life, then and
there feloniously did put, and a certain sum of money, to wit: to
the amount of seventy thousand dollars current money of the said
United States of America, and of the value of seventy thousand
dollars current money aforesaid, of the moneys and property of
the bank of St. Albans, a body corporate, constituted and recog-
nized by the laws of the said State of Vermont, and the said
United States of America, from the person and custody, and pos-
session, and against the will of the said Cyrus Newton Bishop, then
and there feloniously and vlolently did steal, take, and carry away
against the form of the Statutes of the said State of Vermont, in such
case made and provided, and against the peace and dignity of the
said State. The deponent, George Roberts, on his oath deposeth
and saith: I have been clerk in the American House in St. Albans
aforesaid, since March last. I recognize two of the prisoners,
namely, Young and Doty, having seen them in St. Albans
prior to the nineteenth day of October last past. I saw Young
there, I think twice before that day; but I am not sure if it was
more than once. I saw him certainly once in the American House
during the month prior to the nineteenth of October last. About
two o’clock in the afternoon of the last mentioned day, I saw in
front of the National bank, a man named Blaisdale, of St. Albans,
having a disturbance with the prisoner, whom I now recognize,
,
a oo a See he ee
| on ll cos pall @> TE oe em TE ae, i ee ge ee
oore
lace,
ese,
and
upon
f the
3 of
com-
, the
y the
they,
anda
t H.
seph
rons-
. the
1S, in
eng
stru-
aded
wton
yyrus
and
: to
said
sand
y of
coe-
said
pos-
then
pWay
such
the
seth
ans
hers,
Hans
bung
was
buse
bout
y in
ans,
lize,
53
ealling himself Caleb McDowall Wallace. They were struggling
together in front of the said bank. Blaisdale had hold of Wallace,
when I first saw them. Wallace was then armed with two revolvers.
While this was going on, I saw two other persons near by armed the
same way, one of whom I heard saying to Wallace “ shoot him.”
Wallace, and the other armed person, took Blaisdale to the park in
front of the American House. When I saw what I have related, I
was standing on the veranda of the American House. ‘The pris-
oner, Young, came from the direction of the First National
bank in front of the American House, on the veranda of which myself
and eight or nine others were standing. Young presented two
revolvers at the persons on the veranda, and said ‘“ that he was an
officer in the Confederate service ; that he was sent there to take
that town, and that he was going to do it, and that the first man
that offered resistance he would shoot him.” Then the prisoner,
Bruce, whom I saw for the first time, near by, appeared armed
with two revolvers. Bruce ordered the party on the veranda to
go over to the park, which they did; he, Bruce, following them.
I went with the others to the park. When I left the American
House, or very soon after, Young started towards the northern part
of the town. Bruce stayed at the park, and acted as guard, I
should think, for about ten minutes, and then called upon Young,
addressing him as Colonel, for assistance. The prisoner, Doty, then
came on horseback from the yard of the American House. About
the same time I saw some twelve other persons, some of them with
horses, coming from the yard of the American House, among whom
I recognize the prisoner, Charles Moore Swager. ‘These persons
were armed with revolvers, most of them, I think, having two each.
They began to stop what teams there were in the. street, taking
the horses belonging to the teams. Whilst I was in the park, I
saw four or five persons armed with revolvers, standing on the
steps of the Franklin County bank, which is near the American
House, but 1 do not recognize any of those persons now. Some ten
minutes after, we crossed to the park, or perhaps less. I saw the
prisoner, Young, at the north end of the veranda of the American
House shoot one Collins H. Huntingdon with a revolver, wounding
him. Huntingdon then went into the park. <A short time after
this, all the persons I have referred to, armed as aforesaid, started
off together, most of them on horseback, towards the north end of
the town. ‘They all seemed to know each other, and acting in
concert. Ido not recognize any of the prisoners, except those I
have named. I heard several shots fired at the upper end of the
town. Upon every occasion when I saw Young, Swager, Wallace,
Bruce, and Doty, at St. Albans, as I have mentioned, they were
fee ee acs
a
ease
=—=
<=
ite aa
o4
dressed in ordinary civilian’s clothes. I saw nothing either in de-
meanor or dress to indicate that they had or claimed any military
character whatever. On the afternoon of the nineteenth of October
last past, the occurrences I have spoken of did not look like a
military expedition. I thought the armed persons were a mob.
On the nineteenth of October last, the prisoner, Swager, was known
by the name of Jones, prior to the outbreak mentioned.
The foregoing deposition having been read over in the presence
of the prisoners so charged, the deponent declares that the same
contains the truth, and hath signed.
GEORGE W. ROBERTS.
Sworn, taken, and acknowledged, )
before me, on the day, year,
and month, and at the place
hereinbefore mentioned.
(Signed) Cuas. J. Coursou, J.S.P.
The foregoing deposition having been made, and read in the pre-
sence of the said prisoners, they are asked if they have any ques-
tions to put to the deponent, and that having declared by Mr. Kerr,
their counsel, that they had, the following evidence is taken on
cross-examination: When I saw Blaisdale and Wallace, they
were both standing up. Blaisdale had hold of him somewhere
about the neck. I was about twenty yards from Young when
he shot Huntingdon. They apparently were talking together
previous to the shot being fired. Huntingdon was moving on at
the time he was shot. I should judge from Young’s action that he
wanted Huntingdon to go across in the park where we were. I saw
ten or twelve men near the American House belonging to the band,
and there were some others further up the street. Young appeared
to be the leader, and have charge of them at that part of the
town. ‘They appeared to act together, but I saw no plan of
action. I never sawa mob in St. Albans armed the way they
were, with one of their members proclaiming himself an officer in
the Confederate service. I have never seen any of the Con-
federate troops. I have never seen Confederate troops in active
service. When Young came to the veranda of the American
House he said, ‘* Gentleman, I am an officer in the Confederate
“ service, I have been sent here to take this town, and I am going
“ to do it; the first that offers resistance I will shoot him.” St.
Albans has been a recruiting post for the American army before
now.
The prisoners’ counsel declares having no further questions to-
put to the deponent, and this deposition having been read in the
ne
U3 Or O
vO
presence of the said prisoners, the deponent declare it contains the
truth, and hath signed
GEO. W. ROBERTS.
Sworn, taken, and acknomledged,
before me, on the day, year,
and month, and at the place
hereinbefore mentioned.
(Signed) Cras. J. Courso, J.S.P.
PROVINCE OF CANADA,
District of Montreal.
of the Peace in and for the said city of Montreal, in the presence
and hearing of Samuel Eugene Lackey, Squire Turner Teavis,
Alamanda Pope Bruce, Charles Moore Swager, George Scott, Ben-
nett H. Young, Caleb McDowall Wallace, James Alexander Doty,
Joseph McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas
Bronsdon Collins, Mareus Spurr, and William H. Hutchinson,
who are now charged before me, upon complaints made under oath
before me under the provisions of the Treaty between Her Majesty
the Queen and the United States of America, and our Statutes in
that behalf made, with having committed, within the jurisdiction of
the United States of America, the following crime mentioned in the
Treaty between Her Majesty the Queen and the United States of
America, to wit :—For that they, the said Samuel Eugene Lackey,
Squire Turner Teavis, Alamanda Pope Bruce, Charles Moore
Swager, George Scott, Bennett H. Young, Caleb McDowall
Wallace, James Alexander Doty, Joseph MeGrorty, Samuel Simp-
son Gregg, Dudley Moore, Thomas Bronsdon Collins, Marcus
Spurr, and Wilham H. Hutchinson, on the nineteenth day of
October last past, at the town of St. Albans, in the State of Ver-
mont, one of the United States of America, being then and there
armed with certain offensive weapons and instruments, to wit:
pistols commonly known and called revolvers, loaded with powder
and balls and capped, in and upon one Cyrus Newton Bishop
feloniously did make an assault, and him the said Cyrus Newton
Bishop in bodily fear and in danger of his life then and there
feloniously did put, and a certain sum of money, to wit: to the
amount of seventy thousand dollars current money of the United
56
States of America, and of the value of seventy thousand dollars
current money aforesaid, of the moneys and property of the bank
of St. Albans, a body corporate, constituted and recognized by the
laws of the said State of Vermont, and the said United States of
America, from the person and custody and possession, and against the
will, of the said Cyrus Newton Bishop, then and there feloniously
and violently did steal, take, and carry away, against the form of
the Statutes of the said State of Vermont, in such case made
and provided, and against the peace and dignity of the said State.
The deponent, John McLoughlin, on his oath deposeth and saith:
On the 20th of October last, I received orders to proceed to St.
Johns and from thence to Farnham, in pursuit of such persons as
might be found thereabouts, or elsewhere, who had sought refuge in
Canada, after having been engaged in the St. Albans raid. In accord-
ance with my instructions I proceeded there, accompanied by Mr.
Sowles, cashier of the First National bank, at St. Albans, and
Detective John O’Leary. Upon the afternoon of the said 20th day
of October last, a prisoner, whom I now recognize and identify as
George Scott, and now under examination, was arrested by said
John O’Leary at the railroad station in Farnham, in the District
of Iberville. I was present at his arrest and at his search, which
took place immediately after his said arrest. Upon his person were
found two thousand eight hundred and fifty-nine dollars and thirty-
one cents, which was taken charge of by said O’Leary; and which
during his examination as a witness in this matter, at which I was
present, he produced and identified as the same money which he
took from Scott. After he had been arrested, and the money
taken from him, he stated he was a Confederate soldier, and
claimed protection as such. He was dressed in civilian’s clothes,
and looked very much fatigued. He had no fire-arm with him.
On the following morning, the 21st October last aforesaid, at the
hour of seven of the clock, I arrested in the same place where said
Scott was taken another person, who gave me his name as Samuel
Gregg, whom I now point out and identify among the prisoners
here under examination under the name of Samuel Simpson Gregg.
After having arrested him he told me he was going to Montreal,
and from there to Quebec, where he had some friends. He also
said that he'came from Kentucky. I then searched his person,
and found upon him thirty-one dollars and eighty-one cents ; con-—
sisting of one twenty dollar gold piece, one five dollar gold piece
and three one dollar bills upon banks in Canada, and one dollar bill
of the Windsor County bank, one dollar and thirty cents in silver,
and one dollar and forty-five cents in the postal currency of the
United States, and six cents in coppers. He had no other money
about him. ‘These sums of money I now produce. They have
llars
yank
the
3 of
t the
usly
m of
1ade
tate.
ith :
St.
13 as
re In
ord-
Mr.
and
day
y as
said
trict
hich
vere
rty-
uich
was
he
ney
and
hes,
him.
the
said
uel
1ers
gs:
eal,
hlso
bon,
on-
ece
bill
er,
the
ey
ave
ST
remained in my possession ever since. I also found upon his per-
son nine photographs. At the time I made the search, Albert
Sowles, who has also been examined as a witness touching the sub-
ject matter of this investigation, was present, and, upon seeing the
photograph upon the back of which is pencilled the name Caieb
McDowall Wallace, and one of these taken by me from the said
Gregg, he immediately said, ‘‘ That is the likeness of the man who
presented a revolver at me, in the bank, whilst the others were
robbing it.’ I now see under examination the said Wallace, and
1 believe the photograph, upon which his name is pencilled, is a
correct likeness. He did not make any particular remarks about
any of the other photographs, but I recognize in another of them,
upon the back of which is pencilled the name of James Johnson,
the likeness of the prisoner Thomas Bronsdon Collins, now also
under examination. At the time I took possession of thcse phote-
graphs, I asked the said Gregg whose likenesses they were, and I
put upon the back of each the name which he gave me. He, the
said Gregg, was dressed in civilian’s clothes, and was suffering from
a sprain of the ankle. I had no further conversation with the
prisoner; I know no more of him or about him. The foregoing
deposition having been read in the presence of the prisoners so
charged, the deponent declares the same to contain the truth, and
hath signed JOHN McLOUGHLIN.
Sworn, taken, and acknowledged
before me, on the day, month,
and year, and at the place, here- (
inbefore mentioned.
(Signed) Cuas. J. Courson, J.S.P.
The foregoing deposition having been made and read in the
presence and hearing of the prisoners so charged, they are asked
if they have any questions to put to the witness or deponent, and
they having declared they had, by their counsel, Mr. Kerr, the
following evidence is taken on cross-examiuation :
There were also seven other photographs taken at the same time
from Gregg, among which was the likeness of a lady. I arrested
Gregs under my own responsibility. I had no warrant.
The prisoners’ counsel declared having no further questions to
put to the deponent; and this deposition having been read in the
presence of the said prisoners, the deponent declares it contains
the truth, and hath signed JOHN McLOUGHLIN.
Sworn, taken, and acknowledged
before me, on the day, month,
and year, and at the time, here-
inbefore mentioned.
(Signed) Cuas. J. Courson, J.8.P.
{> eas
ci ERE LES
are
PROVINCE OF CANADA, 2
District of [ontreal. §
POLICE COURT.
Examination of James Russell Armington, of the town of St.
Albans, in the State of Vermont, one of the United States of
America, merchant, now in the city of Montreal, taken on oath
this eleventh day of November, in the year of our Lord one chou-
sand eight hundred and sixty-four, in the Police Office in the
Court-house, i in the city of Montre al, in the District of Montreal
aforesaid, before the undersigned Judge of the Sessions of the
Peace in and for the said city of Montreal, in the presence
and hearing of Samuel Eugene Lackey, Squire Turner Teavis,
Alamanda Pope sruce, C harles Moore Sw: ager, George Scott. Ben-
nett IL. Young, Caleb McDowall Wallace, James Alexander Doty,
Joseph MeGrort) , Samuel Simpson Gregg, Dudley Moore, Thomas
Bronson Collins, Marcus Spurr, and William” IL. Iutchinson,
who are now charged before me, upon complaints made under oath
before me under the provisions of the Treaty between Her Majesty
the Queen and the United States of America, and our Statutes in
that behalf made, with having committed, within the jurisdiction of
the United States of America, the following crime mentioned in the
Treaty between Her Majesty the Queen and the United States of
America, to wit:—For that they, the said Samuel Eugene Lackey,
Squire Turner Teavis, Alamanda Pope Bruce, Charles Moore
Swager, George Scott, Bennett H. Young, Caleb McDowall
Wallace, James Alexander Doty, Joseph McGrorty, § Samuel Simp-
son Greve, Dudley Moore, Thomas Bronsdon Collins, Mareus
Spurr, and Wilham H. Hutchinson, on the nineteenth day of
October last past, at the town of St. Albans, in the State of Ver-
mont, one of the United States of America, being then and there
armed with certain offensive weapons and instruments, to wit:
pistols commonly known and called revolvers, loaded with powder
and balls and capped, in and upon one Cyrus Newton Bishop
feloniously did make an assault, and him the said Cyrus Newton
Bishop in bodily fear and in danger of his life then and there
feloniously did put, and a certain sum of money, to wit: to the
amount of seventy thousand dollars current money of the United
States of America, and of the value of seventy thousand dollars
current money aforesaid, of the moneys and property of the bank
of St. Albans, a ay corporate, constituted and recognized by the
laws of the said State of Vermont, and the said United States of
America, from the person and custody and possession, and against the
will, of the said Cyrus Newton Bishop, then and there feloniously
and violently did steal, take, and carry away, against the form of
fo)
the Statutes of the said State of Vermont, in such case made and
2 e
59
provided, and against the peace and dignity of the said State. The
deponent, James dtussell Armington, on his oath deposeth and saith:
On the afternoon of the 19th day of Ocicber last, I was at St.
Albans aforesaid. Between the hours of three and four of the clock
in the afternoon of that day, I saw armed men in St. Albans. I
recognize the prisoners, Young, Doty, and Gregg, having seen them
in St. Albans on that day. I saw them first on the street. ‘They
were on horseback, and were armed with pistols. ‘They were in
civilians’ dress. I should pidge they belonged to one party. They
rode off together towards’ toe north. They did not go of very
rapidly. I should judge that they were iBoat twenty of these
armed men in all. ‘They appe: red to be strangers, and appeared
to be acting in concert. I bou;zht some gold of a stranger in the
bank whom I afterwards learne from M. W. Bairdsley, c ashier of
the bank, was one of the party. I heard shots fired by the party
that rode off together, as I have mentioned. The foregoing depo-
sition having been read over in the presence of the prisoners so
charged, the deponent declares that the same contains the truth,
and hath signed
J. RUSSELL ARMINGTON,
Sworn, taken, and acknowledged >
before me, on the day, month, |
and year, and at the place, here-
inbefore mentoned.
(Signed) Cuas. J. Courson, J.S.P.
The foregoing depositian having been made and read in the
oD oD ] oD
presence and hearing of the said prisoners, they are asked if they
have any questsons to put to the deponent; and they having
declared, by Mr. Kerr, their counsel, that they had, the following
evidence is taken in cross-examination :
I saw shots fired by the party, and I saw shots fired at the party
by people of St. Albans. This firmg took place a little above the
St. Albans bank. I should judge that Gregg had little more
whiskers on; that is the only difference I see in his face.
The prisoners’ counsel declares having no further questions to
put to the deponent ; and this deposition having been read in the
presence of the said prisoners, the deponent declares it contains
the truth, and hath signed
J. RUSSELL ARMINGTON.
Sworn, taken, and acknowledged )
before me, on the day, month,
and year, and at the place, here-
inbefore mentioned.’
(Signed) Cuas. J. Coursor, J.8.P.
sd
PROVINCE OF ea PULICE COURT.
District of Montreal.
. The examination of Marcus Wells Beardsley, of the town of
St. Albans, in the State of Vermont, one of the United States of
America, now in the city of Montreal, taken on oath this eleventh
day of November, in the year of our Lord one thousand eight
hundred and sixty-four, at the Police Office in the Court-house,
in the city of Ms mtreal, in the District of Montreal aforesaid,
before the undersigned Judge of the Sessions of the Peace
in and for the said city of Montreal, in the presence and hearing
of Samuel Eugene Lackey, Squire Turner Teavis, Alamanda
Pope Bruce, Charles Moore Swager, George Scott, Bennett
II.. Young, Caleb McDowall Wallace, James Alexander Doty,
Joseph McGrorty, § Samuel Simpson Gregg , Dudley Moore, Thomas
Bronsdon Collins, Marcus Spurr, and William’ I. Hutchinson,
who are now charged before me, upon complaints made under oath
before me under the provisions of the Treaty between Her Majesty
the Queen and the United States of America, and our Statutes in
that behalf made, with having committed, within the jurisdiction of
the United States of America, the following crime mentioned in the
Treaty between Her Majesty the Queen and the United States of
America, to wit:—For that they, the said Samuel Eugene Lackey,
Squire Turner Teavis, Alamanda Pope Bruce, Charles Moore
Swager, George Scott, Bennett H. Young, Caleb McDowall
Wallace, James Miexaniler Doty, Joseph MeGrorty, Samuel Simp-
son Gregg, Dudley Moore, ‘Thomas Bronsdon Collins, Marcus
Spurr, and William IL. Hutchinson, on the nineteenth day of
October last past, at the town of St. Albans, in the State of Ver-
mont, one of the United States of America, being then and there
armed with certain offensive weapons and instruments, to wit:
pistols commonly known and called revolvers, loaded with powder
and balls and capped, in and upon one Cyrus Newton Bishop
feloniously did make an assault, and him the said Cyrus Newton
Bishop in bodily fear and in danger of his life then and there
feloniously did put, and a certain sum of money, to wit: to the
amount of seventy thousand dollars current money of the United
States of America, and of the value of seventy thousand dollars
current money aforesaid, of the moneys and property of the bank
of St. Albans, a body corporate, constituted and recognized by the
laws of the said State of Vermont, and the said United States of
America, from the person and custody and possession, and against the
will, of the said Cyrus Newton Bishop, then and there feloniously
and violently did steal, take, and carry away, against the form of
the Statutes of the said State of Vermont, in such case made and
RT.
wn of
tes of
venth
eight
10use,
esaid,
Peace
aring
1anda
nnett
Doty,
jomas
nson,
oath
yjesty
‘es in
on of
n the
es of
‘key,
Loore
wall
imp-
rcus
ly of
er-
here
wit :
vder
shop
vton
1ere
the
ited
lars
ank
the
s of
the
sly
of
and
i
*
‘|
:
61
provided, and against the peace and dignity of the said State.
The deponent, “Marcus Wells Beardsley, on his oath saith ;
On the nineteenth day of October last past, I resided at St.
Albans, and was and still am the cashier of the Franklin C ounty
bank. On that day, in the afternoon, there was an outbreak in
u@ Village, and a number of armed men appeared there; those
that I saw were strangers. When I first saw some of these men I
was in the said bank. The men I saw belonging to this armed
gang, were armed with large revolvers. I recognize the prisoner,
Hutchinson, as one of the armed gang that entered the said Frank-
lin County bank. He wore whiskers then, which he has not now,
and he had no spectacles on then as he has now. All I can state
as to what took place outside of the Franklin County bank, I know
by report only. Hutchinson, when he first came into the bank,
enquired from me what we were paying for gold. I answered
that we were rot dealing in such article, and referred him to a
Mr. Armingtor, a merchant of the village. There were four or
five of the said armed cang that entered the Franklin County
bank, but I onlv recognize Hutchinson, who seemed to he their
leader . These men were all arm: with revolvers. They remained
in the ban’. «© should think, t.i. or fifteen minutes. <All these
men presented revolvers, and threatened ny life, but no revolver
was discharged, ‘Ther. |. on were all ©..ssed in ordinary civilians’
clothes. I saw none of t:cse men afterwards in St. Albaus. I
next saw Hutchinson in the Montreal gaol. I r->. rked to Hutch-
inson and to Mr. Saxe, both being “present at the gaol, that I
thought I had received very brutal ‘treatment at the bank at St.
Albans, at the hands of the leader of the gang. Hutchinson then
remarked that the peopic of the North were treating the people of
the South in the same manner. The foregoing deposition having
been read over in the presence of the prisoners so charged, the
deponent declares it contains the truth, and hath signed
M. W. BEARDSLEY.
Sworn, taken, and acknowledged )
before m,n the day, month, |
and year, und at the place, here-
inbetore mentioned.
Cuas. J. Covnson. Jce.P<
The foregoing deposition having been made in the presence and
hearing of “the prisoners so charged, they are asked if they have
any questions to put to the depone nt; ; and they having declared,
by. their counsel, that they had, the following evidence is taken on
cross-examination :
The person I have identified on that day wore whiskers as I
4
i
4}
PTW ere a ca a pe
=~
52
(
have already said, and a small wool or fur hat with a narrow brim.
IIe had a dark colored coat on, but I cannot say whether it was
black or blue. It was rather ample in size. He had full whiskers
extending round upon his chin, and a little upon his chin, I think.
I am not sure if he had a moustache or not. I cannot say if the
upper part of his chin was shaved or not. My motive in speaking to
him at the gaol as I did, was that I felt sure that he was the man that
had committed the act, and I felt disposed to tell him so. It was
probably not necessary to tell him that it was a brutal act ; but I
felt disposed to say what I did, and I said it. I said it to him in
the ward of the gaol where he was confined. I was admitted there
by a man I supposed to be the gaoler. I think he was standing
very near when I said this to the pn oner; that is my impression.
My friend, Mr. Saxe, was beside me too. I was not at all con-
cerned for my personal safety for what I said there.
On question by the Judye. “Thad never seen Hutchinson before
to my knowledge. The prisoners’ counsel declares having no
further questions to put to the deponent, and this deposition having
been read in the presence of the said prisoners, the deponent
declares it contains the truth, and hath signed
M. W. BEARDSLEY.
before me, on the day, month,
and year, and at the place, here-
inbefore mentioned.
(Signed) Cnas. J. Courson, J.3.P.
Sworn, taken, and tay, month, (
PROVINCE OF CANADA, POLICE COURT.
District of Montreal.
The examination of Charles Alexander Marvin, of the town of
St. Albans, in the State of Vermont, one of the United States of
America, merchant’s clerk, now in the city of Montreal, taken on
oath this eleventh day of November, in the year of our Lord one
thousand eight hundred and sixty-four, at the Police Office in the
Court-house, in tlie city of Montreal, in the District of Montreal
aforesaid, before the undersigned Judge of the Sessions of the
Peace im and for the said “city of Montreal, in the presence
and hearing of Samuel Eugene Lackey, Squire Turner Teavis,
Alamanda Pope 3ruce, Charles Moore Swager, George Scott, Ben-
nett I. Young, Caleb McDowall Wallace, James Alexander Doty,
Joseph McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas
Bronsdon Collins, Marcus Spurr, and William H. Hutchinson, who
are now charged before me, upon complaints made under oath
before me under the provisions of the Treaty between Her
63
Majesty the Queen, and the United States of America, and
brim.
t was our Statutes in that behalf made, with having committed within
skers the jurisdiction of the United States of America, the following
hink. crime mentioned in the Treaty between Her Majesty the Queen,
f the and the United States of “America, to wit:—For that they, ,
ng to the said Samuel Eugene Lackey, Squire Turner Teavis, Ala- ie
. that manda Pope Bruce, Charles Moore Swager, George Scott, Bennett ty
t was Hl. Young, Caleb McDowall Wallace, James ‘Alexander Doty,
but I Joseph MeGrorty, § Samuel Simpson Gregg, Dudley Moore, Tho- mie
'm in : mas Bronsdon Collins: Marcus Spurr, and William II. Huatchingon; ye
there on the nineteenth day of October last past, at the town of rr
ding : St. Albans, in the State of Vermont, one of the United States
gion. - of America, being then end there armed with certain offen- ,
con- : sive weapons and instruments, to wit: pistols commonly known and hs
called revolvers, loaded with powder and balls and capped, in and i
ofore upon one Cyrus Newton Bishop, feloniously did make an assault and
y no him the said Cyrus Newton Bishop in bodily fear and in danger
ving i of his life, then and there feloniously did put, and a certain sum of
nent money, to wit: to the amount of seventy thousand dollars current
: money of the said United States of America, and of the value of
Y. “ seventy thousand dollars current money aforesaid, of the moneys
and property of the bank of St. Albans, a body corporate, consti-
tuted and recognized by the laws of the said State of Vermont,
and the said United States of America, from the person and
custody, and possession, and against the will of the said Cyrus
Newton Bishop, then and there feloniously and violently did
steal, take, and carry away against the form of the Statutes
of the said State of Vermont, in such case made and provided,
and against the peace and dignity of the said State. The depo- ey
nent, Charles Alexander Marvin, upon his oath deposecth and ae |
of sath: I was in St. Albans aforesaid, on the nineteenth day of
s of October last in the afternoon. I was standing on the step of
on g iny brother’s store on Main street, at about a quarter past three
one | o'clock in the afternoon of that day. The first person I saw was
the 4 the prisoner, Doty, on a black horse. I did not see that he had
eal ; any arms. I saw about ten armed men there that afternoon.
1 They were on horseback. They were all armed ae with revol-
vers. I saw among this armed party the prisoners, Young, Doty,
and Teavis. The prisoner, Teavis, was armed and on horseback
also. ‘The armed party all rode off together on horseback about
twenty minutes atter I first saw them ; they seemed to be in
great haste, and appeared all to act in concert together, and
: as one party. I heard a number of shots fired by this party. I
] Bedford, on the Friday following the nineteenth of October last. I
saw the prisoner, Dudley Moore, at Waterloo, in the District of “are
|
freee
a
a
me
i it re ———--
nm ~~ +
Se ee
64
merely asked him one direct question, ‘‘ When you were at Shel-
‘“¢ don Creek on the opposite side of the street, where was our pur-
‘¢ suing party ?”’ and he answered, “‘ Coming into sight on the opposite
“¢ side of the Creek.” Sheldon’s Creek is about ten miles north of
St. Albans. WhenI said ‘ Where was our pursuing party?” I re-
ferred to a party of St. Albans people pursuing the armed party
I have spoken of. ‘The armed party that I have spoken of were
all strangers to me. ‘They were dressed in civilians’ clothes, most
of them differing from each other. The foregoing deposition
having been read over in the presence of the prisoners so charged,
the deponent declares the same contains the truth, and hath signed
CHARLES A. MARVIN.
Sworn, taken, and acknowledged )
before me, on the day, month, |
and year, and at the place, here-
inbefore mentioned. J
(Signed) Cuas. J. Courson, J.8.P.
The foregoing deposition having been made and read in the
presence and hearing of the said prisoners, they are asked if they
have any questions to put to the deponent; and they having
declared, by Mr. Kerr, their counsel, that they had, the following
evidence is taken on cross-examination :
I saw one man trying to fire upon the armed party. The
prisoners’ counsel declares having no further questions to put to
the deponent; and this deposition having been read in the presence
of the said prisoners, the deponent declares it to contain the truth,
and hath signed
CHAS. A. MARVIN.
Sworn, taken, and acknowledged
before me, on the day, month,
and year, and at the place, here-
inbetore mentioned.
Cuas. J. Courson, J.8.P.
PROVINCE OF CANADA,
District of Montreal.
America, Counsellor-at-law, now in the city of Montreal, taken on
oath this tenth day of November, in the year of our Lord one
thousand eight hundred and sixty-four, at the Police Office in the
Court-house, in the city of Montreal, in the District of Montreal
aforesaid, before the undersigned Judge of the Sessions of the
shel-
pur-
osite
th of
I re-
arty
were
most
‘ition
‘ced,
oned
N.
1 the
they
aving
wing
The
ut to
sence
ruth,
IN.
tae = eae
6 5
Peace in and for the sail city of Montreal, in the presence
and hearing of Samuel Eugene Lackey, Squire Turner Teavis,
Alamanda ‘Pope Bruce, Charles Moore Swager, George Scott,
Bennett H. Young, Caleb McDowall Wallace, James Alexander
Doty, Joseph McGror ty, Samuel Simpson Gregg, Dudley Moore,
Thomas Bronsdon Collins, Mareus Spurr, “and Wilham =H.
Hutchinson, who are now charged before me, upon complaints
made under oath before me under the provisions of the ‘Treaty
between Her Majesty the Queen and the United States of
Amcrica, and our Statutes in that behalf made, with having com-
mitted within the jurisdiction of the United States of America,
the followmg crime mentioned in the Treaty between Her Majesty
the Queen, and the United States of America, to wit:—For
that they, the said Samuel Kugene Lackey, Squire Turner
Teavis, Alamanda Pope Bruce, Charles Moore Swager, George
Scotti, Bennett H. Young, Caleb McDowall Wallace, James Alex-
ander Doty, Joseph McGrorty, Samuel Simpson Grege, Dudley
Moore, Thomas Bronsdon Collins, Marcus Spurr and William H.
Hutchinson, on the nineteenth day of October last past, at the town
of St. Albans, in the State of Vermont, one of the United States
of America, and within the jurisdiction of the said United States of
America, being then and there armed with certain offensive
weapons and instruments, to wit: pistols commonly called revolvers,
loaded with powder and balls and capped, in and upon one Cyrus
Newton Bishop feloniously did make an assault, and him the said
Cyrus Newton Bishop in bodily fear, and in danger of his life, then
and there feloniensly did put, and a certain sum of money, to wit:
to the amount of seventy thousand dollars current money of the said
United States of America, and of the value of seventy thousand
dollars current money aforesaid, of the moneys and property of the
bank of St. Albans, a body corporate, constituted and recognized by
the laws of the said State of Vermont, and the said United States of
America, from the person, and custody, and possesion, and against
the will, of the said Cyrus Newton Bishop, then and there feloniously
and violently did steal, take, and carry away, against the form of the
Statutes of the said State of V ermont, in such case made and pro-
vided, and against the peace and dismity of the said State. The
deponent, Henry George Edson, upon his oath deposeth and saith :
! have practised law in the village of St. Albans, since the year
1844. ‘The population of the village i is between two and three thow-
sand. It covers an area of about one mile square. There are between
two and three hundred houses in the village. The first National
bank, the American House, and the St. Alban’s bank, are situated
in the Main street, and in a central part of the village, ard are
not very far apart from each other. The Franklin County bank
E
Se SO
66
is on the same street, and about midway between the First National
bank and the St. Albans bank. I am acquainted with the laws of
Vermont, and state that the volume now produced contains the
veneral statutes in force in Vermont; and I say that the sections 22,
24, and 26, chapter 112 of said statutes, and sections 86 and 87 of
chapter 15, and sections 1, 6, and 9 of chapter 31 of the said statutes,
were on and prior to the nineteenth day of October last, and are
nuw in force in the State of Vermont, and form part of its general
laws. Iam acquainted with the seal of said State, and the signa-
tures of the governor and secretary of state. The seal affixed
to the certificate written upon the leaf between page 790 and the
first page of the index of said volume, is the seal of the said State.
The signature J. Gregory Smith, subscribed to the said certificate,
and the signature G. W. Bailey, jun., also thereto subscribed, are
respectively the signatures of the governor and secretary of state
of the said State of Vermont. I also say that the seal affixed to
the certificate upon the last page of the copies of complaint and
warrant made and issued in Vermont, and produced and tiled yes-
terday is the seal of the said State, and the said signature of J.
Gregory Smith, and G. W. Bailey, jun., thereto subscribed, are
respectively the signatures of the Governor and Secretary of State
of the said State. I k.ow that robbery is a crime by the laws of
the State of Vermont. [am one of the legal advisers of the St.
Albans bank. I know that this bank has been carrying on busi-
ness as banking corporation at St. Albans, under the laws of
Vermont for several years past, and was so carrying on business
on the nineteenth day of October last. I compared the copies of
complaint and warrant before referred to, with the original com-
plaint and warrant made and issued at St. Albans, in the State
of Vermont, and declare them to be true and exact copies of the
said originals respectively, and they are in the form prescribed by
the laws of the said State of Vermont. The crime disclosed in the
said complaint, and also in the commencement of this my exami- - .
nation, is the crime of robbery according to the laws of the
State of Vermont, and according to the laws of the United
States of America. According to the laws of the State of
Vermont, the duty of the town grand juror is to lodge complaint
before justices of the peace, that is to say, within the town to
which he is elected. I know that Mr. Chellis F. Safford, who
lodged the complaint referred to, was on the nineteenth and twen-
tieth days of October last, a grand juror, within the said town of
St. Albans. No depositions are taken according to the laws of
Vermont, prior to the issuing of a warrant, but the warrant is
issued upon the information of the grand juror. By the laws of
Vermont, upon the last mentioned days, a justice of the peace had
+c iret Rona sisi bt alae ile aie ae
en an eee Be
OT
anthority and jurisdiction to receive complaints such as I have spoken
of within the county for which they are appointed, and also to issue
warrar.ts of apprehension in the form [have before spoken of upon
which prisoners if arrested would be held for examination. This
my examination is continued till to-morrow morning at ten o’clock,
and I have signed Hf. G. EDSON.
Sworn, taken, and acknowledged,
before me, on the day, mouth,
and year, and at the place
hereinbefore mentioned.
(Signed) Cuas. J. Courson, J.S.P.
On this day, the 11th day of November, in the year of our Lord
1864, the deponent, Henry George Edson, before named, reappears
“before me the undersigned, Charles. Joseph Coursol, Esquire,
Judge of the Sessions of the Peace, in and for the city of Montreal,
and being re-sworn in the presence of the prisoners so charged,
deposeth and saith,—The three documents now produced, pur-
porting to be respectively ‘‘ An Act to incorporate the Presi-
‘dent, Directors, and Company of the Bank of St. Albans,”
‘An Act to extend the time and continuing in force for a
limited period an Act to incorporate the President, Direc-
“* tors, and Company of the Bank of St. Albans ;” and “ An Act
‘¢ to extend the Charter and increase the capital stock of the Bank
“of St. Albans,”’ are copies of the several acts of the Legislature of
the State of Vermont, incorporating and relating to the St. Albans
bank ; the seal affixed to the certificates appended to the said
copies respectively, is the seal of the said State of Vermont, and
the signatures J. Gregory Smith, and G. W. Bailey, jun., sub-
scribed to the said certificates respectively, are the signatures of
the governor and secretary of state of the said State respectively.
The acts of which those documents are copies, were in force in the
State of Vermont on the nineteenth day of October last, and still
are so; and the bank was on that day, and still is organized and carry-
ing on business, at St. Albans, in the State of Vermont, under the
said Acts. The village and town of St. Albans before referred to, are
within the jurisdiction of the United States of America, and are situ-
ated in the State of Vermont, one of the United States of America.
The foregoing deposition having been read over in the presence
of the prisoners so charged, the deponent declares the same to con-
tain the truth, and hath signed H. G. EDSON.
Sworn, taken, and acknowledged,
before me, on the day, month,
and year, and at the place |
66
hereinbefore mentioned.
(Signed) Cuas. J. Courson, J.8.P.
Senet oer ae
68
The foregoing deposition having been made and read in the pre-
sence and ‘hearing of the prisoners above named, they are asked
if they have any questions to put to the deponent ; and they havin:
declared by their counsel, Mr. Kerr, that they had, the following
evidence is taken in cross-examination :
I think that a family resides in a part of the building in
which the St. Albans bank is carrying on business and where
it carried on business on the nineteenth of October last. I
compared copies of the complaint and warrant made and issued
in the State of Vermont, and filed in these proceedings. I can-
not state when I so compared the said charge and complaint with
the original thereof. The said copies of complaint and warrant
are in the handwriting of a man by the name of Taylor, of
St. Albans. I do not recognize the handwriting in which the
name William IH. Ifutchinson in the warrant and in the complaint
appears. The name William H. Hutchinson appeared in the original
warrant and complaint when I compared it with the copies. ‘Tt is
usual in our legal proceedings before magistrates to interpolate
words in the same way that the words “ William H. Hutchinson” are
in the copies of complaint and warrant now producca, aid such
alterations are not made in the margin. I can practise before any
Circuit and District Court of the United States sitting in the State
of Vermont. I have never been admitted to practise before the
Superior Court sitting at Washington. The United States Statutes
at Large published by Little & Brown at Boston, are received as
authentic in all the Courts of the United States, without any fur-
ther proof of their authenticity. I cannot say how many volumes
there are; I think about eleven. I am acquainted with the law
of the United States upon the subject of treason, as most lawyers
are, from general reading. The definition of treason against the
United States would be the levying of war against them, or adhering
to their enemies, or giving them aid or comfort within the United
States or clsew here, by any person owing allegiance to the United
States. 1 am 1 t prepared to swear that the United States subjects
residing in the Confederate States, and who have taken up arms
against them, are guilty of treason; I leave that to the judicial
tribunals of the country to decide. I have heard of an Act of the
Congress of the United States of the nineteenth of June, one thou-
sand eight hundred and fifty-two, commonly called the “ Confisea-
tion Act ; ” T have read that Act. I know thata civil war has been
raging between the United States and the so-called Confederate
States for the last three years.
The prisoners’ counsel declares having no further questions to
put to the deponent, and this deposition having been read in the
fret net acl miter. wha Win Sad
69
c presence of the said prisoners, the deponent declares it contains the
ed truth, and hath signed ra |
ns H. G. EDSON, p(s
ng Sworn, taken, and acknowledged, ) We
: before me, on the day, month, ie
m and year, and at the place f a
re hereinbefore mentioned. ie)
I (Signed ) Cuas. J. bei RSOL, J.S8.P.
ed ;
es ROVINCE OF CANADA
th q =e Dar Aeaheed ; i POLICE COURT.
nt :
ot The examination of Janes a of the town of St. Albans, in the he
he : State of Vermont, one of the United States of America, merchant, Hee
mnt now in the city of Montreal, taken on oath this 11th day of Novem-
ral her, in the year of our Lord one thousand eight hundred and sixty-
18 four, at the Police Office in the Court- house, in the city of Montre al,
ite in the Listrict of Montreal aforesaid, before the undersigned Judge
we of the Sessions of the Peace in and for the said city of Montr eal, in
ch the presence and hearing of Samuel Eugene Lackey, Squire Tarnet ,
ny P.. Teavis, Alamanda Pope Bruce, Charles Moore Swager, George
ute 3 Scott, Bennett H. Young, ¢ ‘aleb McDowall Wallace, James Alex-
a ander Doty, Joseph Mech, Samuel Simpson Gregg, Dudley
Moore, ‘Thomas Bronsdon Coilins, Marcus Spurr, and William H.
. Hutchinson, who are now charged before me, upon complaints made
under oath before me under the provisions of the Treaty between
Her Majesty the Queen and the United States of America, and
our Statutes in that behalf made, with having committed, within
the jurisdiction of the United States of America, the following
crime mentioned in the Treaty between Her Majesty the Queen
5 ‘ and the United States of America, to wit:—For that they,
i q the said Samuel Eugene Lackey, Squire Turner Tavis, Ala-
‘ ' manda Pope Bruce, Charles Moore Swager, George Scott, Bennett
ts If. Young, Caleb MeDowall Wallace, James Alexander Doty,
Joseph MeGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas
Bronsdon Collins, Marcus Spurr, and William’ H. Hutchinson,
on the nineteenth day of October last past, at the town of
St. Albans, in the State of Vermont, one of the United States of
America, being then and there armed with certain offensive weapons
and instruments, to wit: pistols commonly known and called revol-
vers, loaded with powder and balls and capped, in and upon one
Cyrus Newton Bishop feloniously did make an assault, and him the
said Cyrus Newton Bishop in bodily fear and in danger of his life
then and there feloniously did put, and a certain sum of money, to
wit: to the amount of seventy thousand dollars current money of
=
‘
tori EWI SSeS
70
the said United States of America, and of the value of seventy
thousand dollars current money aforesaid, of the moneys and _pro-
perty of the bank of St. Albans, a body corporate, constituted and
recognized by the laws of the said State of Vermont, and the said
United States of America, from the person and custody and _pos-
session, and against the will, of the said Cyrus Newton Bishop, then
and there feloniously and violently did steal, take, and carry away,
against the form of the Statutes of the said State of Vermont, in such
case made and provided, and against the peace and dignity of the sald
State. The deponent, James Saxe, upon his oath saith: I was in St.
Albans aforesaid, on the nineteenth day of October last past, in the
afternoon. I think on that afternoon I saw about fifteen men on
horseback ; some of them were armed with revolvers, but how many
I could not say. They all appeared to act in concert together.
The prisoner Hutchinson, whom I now recognize, was one of the
armed party at St. Albans, in that afternoon. I notice a little ab-
sence of whiskers, and he had no spectacles on at that time as he has
now. I saw J{utchinson for the first time in that afternoon, in
the Franklin County bank. There was something said in my
presence in regard of the price of gold. Mr. Bairdsley, the cashier
of the bank, handed me the Boston Journal, and asked me to read
the money article. Ididso. So far as I could see, Hutchinson
was unarmed at that time. I am not positive that I saw him indi-
vidually in the crowd of armed men on horseback. Hutchinson was
in civilian’s dress, and so also were the others. ‘Tne armed men
I have spoken of left the town in a northerly direction, and went
off in a body.
The foregoing deposition having been read over in the presence
of the prisoners so charged, the deponent declares that the same
contains the truth, and hath signed
JAMES SAXE.
Sworn, taken, and acknowledged, )
before me, on the day, month, |
and year, and at the place
hereinbefore mentioned.
(Signed) Cuas. J. Courson, J.8.P.
‘The foregoing deposition having been made and read in the pre-
sence of the said prisoners, they are asked if they have any ques-
tions to put to the deponent; and having declared by Mr. Kerr,
their counsel, that they had, the following evidence is taken in
cross-examination: My impression is, that he Hutchinson had a
moustache. I think his beard went pretty much round his face, but
I am not positive ; I have a strong impression. He was at about
six or eight feet from me. LHe was nearly facing me. My impres-
os beri ne
dv
ToO-
nd
aid
OS-
on
Ay,
ich
ald
St.
he
on
ny
el.
the
ab-
12s
in
my
ier
acd
301)
di-
ras
yen
nt
ce
me
ates Tene
Rec ese
‘sion is, that he had on a black round crown felt hat. It was then
about half-past three, or a quarter to four o’clock. It was not a
very bright day. There was a good light in the room. The win-
dows are in front. Ie stood with his back in the light. I cannot
be positive that I saw him after he left the bank. The first time
I saw him aferwards, was at the gaol_—when I asked the gaoler
to point out the man who called himself Hutchinson. All the other
prisoners were present. I took a general view of the prisoners,
passing among them, and I could not see him; and it was then that
I asked the gaoler to point him out. The first time I saw the
prisoner, after seeing him in St. Albans, was in the police office.
I never saw the prisoner IIutchinson threaten any person or commit
any violence. I am not aware that I saw him in the crowd of
-armed men.
The prisoners’ counsel declares having no further questions to
put to the deponent, and this deposition having been read in
the presence of the said prisoners, the deponent declares it contains
the truth, and hath signed JAMES SAXE.
Sworn, taken, and acknowledged,
before me, on the day, month,
and year, and at the place (
hereinbefore mentioned.
(Signed) Cuas. J. Courson, J.S.P.
By permission of the Court, on application of the counsel for
the prosecution, the deponent, James Saxe, reappears before me
the undersigned, and states: I asked the gaoler if he would call
Mr. Hutchinson, who was then out of sight. I did so for the benefit
of Mr. Bairdsley, as Mr. Bairdsley had not seen him since he was a
prisoner. ‘This is the only correction I have to make in my
deposition.
On cross-examination by permission of the Court: The prisoner
came from the farther end of a very long room, where the greatest
number of prisoners were. ‘The room seemed to be one hundred
feet long, and I had then walked about twenty feet in that room.
There were other persons in the room and at the end of the room.
I could not see distinctly at that distance.
The prisoners’ counsel having declared that he had no further
questions to put to the deponent, this examination is closed, and |
have signed JAMES SAXE.
Sworn, taken, and acknowledged, \
before me, on the day, month, |
and year, and at the place
hereinbefore mentioned.
(Signed) Cuas. J. Courson, J.S.P.
PROVINCE OF CANADa, ¢
District of Montreal. 5
POLICE COURT.
The examination of Leonard Leandre Cross, of the town of
St. Albans, in the State of Vermont, one of the United States of
America, photographist, now in the city of Montreal, taken on oath
this eleventh day of November, in the year of our Lord one thou-
sand eight hundred and sixty-four, at the Police Office in the Court
house, in the city of Montreal, in the District of Montreal aforesaid,
before the undersigned Judge of the Sessions of the Peace in and
for the said city of “Montreal, i in the presence and hearing of Samuel
Kugene Lackey, Squire Turner Teavis, Alamanda Pope Bruce,
Charles Moore Swager, George Scott, Bennett H. Young, Caleb
MeDowall Wallace, ‘James Alexander Doty, Joseph McGrorty,
Samuel Simpson Gregg, Dudley Moore, Thomas Bronsdon Collins,
Marcus Spurr, and William H Ilutchinson, who are now charged
hefore me, upon complaints made under oath before me under the
provisions of the Treaty between Her Majesty the Queen, and the
United States of Awerica, and our Statutes in that behalf made,
ae having committed within the jurisdiction of the United States
America, the following crime mentioned in the Treaty between
ae Majesty the (Queen, and the United States of America,
to wit:
For that they, the said Samuel Eugene Lackey, Squire Turner
‘eavis, Alamanda Pope Bruce, Charles Moore Swager, George
Scott, Bennett H. Young, Caleb McDowall Wallace, James Alex-
ander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dudley se
Moore, Thomas Bronsdon Collins, Marcus Spurr, and William H. str
Hutchinson, on the nineteenth day of October last past, at the town be
of St. Albans, in the State of Vermont, one of the United States
of America, being then and there armed with certain offensive wea- of
pons and instruments, to wit: pistols commonly known and called 0)
f revolvers, loaded with powder and ball and capped, in and upon
one Cyrus Newton Bishop feloniously did make an assault, and him Sy
the said Cyrus Newton Bishop in bodily fear and in danger of his
life, then and there feloniously did put, and a certain sum of money,
to wit: to the amount of seventy thousand dollars current money
of the said United States of America, and of the value of seventy
thousand dollars current money aforesaid, of the moneys and pro-
H perty of the bank of St. Albus a body corporate, constituted and |
recognized by the laws of the said State of Vermont, and the said se!
United States of America, from the person and custody, and pos- tio
sesssion, and against the will of the said Cyrus Newton Bishop, K
then and there feloniously and violently did steal, take, and ta:
carry away, against the fori of the Statutes of the said State
of Vermont, in such case made and provided, and ayuinst the
peace and dignity of the said State. The deponent, Leonard
Leandre Cross, upon his oath deposeth and saith: I was in
the village of St. Albans on the nineteenth day of October last,
in the afternoon. I saw a party of armed men there that after-
noon; I should think between twenty and thirty in number. This
was between three and four o'clock in the afternoon. The 'v were
on horseback, and in the street of the village. ‘They were armed Le
with revolvers, and dressed in ordinary civilians’ clothes. I saw ty
there on that afternoon, forming part of the armed party I have
spoken of, the prisoners Young, Bruce, Spurr, Lackey, and Collins,
all of whom I now identify. They were all armed with revolvers, 1 A
and were on horseback. The party appeared to be acting in con-
cert, and they rode off together ; and shortly after I saw them on
the street they seemed to hes in a hurry to get away. ‘The prisoner
Young shot at me with a revolver. IT saw the party shooting, and
Wes
I stepped out of my photograph saloon, and said to one of the party atts
“What are you try ing to celebrate here 7”? Young answered, ** [ll {ih
let you know,” and fired his reyelver at me. Ie then said ** Come ‘Wel
out ; let every one of you walk out into the street.” Young then ui
ordered Lackey to throw Greck fire into Mr. Atwood’s building. eee
Lackey threw a bottle, or something made of glass, against the ve
sion over the door of the building. Young said then, * Boys th
march up the street, there is too great a crowd vathering round tl
here.” He started off, and fired again at me, or at all events the Aa
Sworn, taken, and acknowledged, )
before me, on the day, month, {
and year, and at the place
hereinbefore mentioned.
(Signed) Cuas. J. Courson, J.8.P.
ball passed near me. ‘This was the same party that committed (yh
several acts of violence in the village that afternoon. They were Ne
strangers, with the exception of Young, whom I had seen there ae
hefore. iv
The foregoing deposition having been read over in the presence bi
of the prisoners so charged, the deponent declares that the same be
contains the truth, and hath signed ie
LEONARD L. CROSS ay
The foregoing deposition having been made and read in the pre-
sence of the said prisoners, they are asked if they have any ques-
tions to put to the deponent, and that having declared by Mr.
Kerr, their counsel, that they had, and the following evidence is
taken in cross-examination :
I went to Stanbridge. I helped to arrest two of the prisoners
at Stanbridge. 1 saw then handcuffed. I was armed when I
Nl; was in Stanbridge, haviae © ievulver. IT do not remember threat-
ening to shoot any of th» ,cio ics in Stanbridge. IT had my
pistol in my hand when I \\-et into the room where the prisoners
were. They were not handc uffed it that time. I might have
said that if the man who had shot at me would give me the same
b chance I would shoot him. I only saw at St. Albans one man
who, after they had ridden up the strect, snapped a rifle at them.
It was a man of the name of Gilson.
The prisoners’ counsel declares having no further question to put
to the deponent, and this deposition having been read in the pre-
sence of the said prisoners, the deponent declares it contains the
truth, and hath signed
LEONARD L. CROSS.
Svorn, taken, and acknowledged, )
before me, on the day, month, |
and year, and at the place (
hereinbefore mentioned.
Cuas J. Courson, J.S.P.
PROVINCE OF lane POLICE COURT.
District of Montreal.
d
a
The examination of Daniel Greenleaf Thompson, of the town of 0
Montpelier, in the State of Vermont, one of the United States of f
America, clerk, now in the city of Montreal, taken on oath this 12th s
day of November, i in the year of our Lord one thousand eight hun- a
dred and sixty-fi our, at the Police Office in the Court- house, i in the c
city of Montreal, in the District of Montreal aforesaid, before the c
undersigned Judge of the Sessions of the Peace in and for the said :
i 4 city of ‘Montreal, i in the presence and hearing of Samuel Eugene \
A. Lackey, Squire Turner Teavis, Alamanda Pope Bruce, Charles ti
Moore Swager, George Scott, Bennett H. Young, Caleb McDowall S
Wallace, James Alexander Doty, Joseph McGrorty, Samuel
Simpson Gregg, Dudley Moore, Thomas Bronsdon Collins, 0
Mareus Spurr, and William H. Hutchinson, who are now charged c
before me, upon complaints made under oath before me under the
t provisions of the Treaty between Her Majesty the Queen, and the :
United States of America, and our Statutes in that behalf made,
with having committed within the jurisdiction of the United States
of America, the following crime mentioned in the Treaty between
ITer Majesty the Queen, and the United States of America, to wit :—
For that they, the said Samuel Eugene Lackey, Squire Turner
en I
reat-
| my
ners
have
same
man
hem.
) put
) pre-
$ the
s
i bp
wn of
tes of
12th
hun-
n the
e the
said
gene
arles
owall
muel
lins,
rged
the
l the
ade,
ates
Teavis, Alamanda Pope Bruce, Charles Moore ag te George
Scott, Bennett If. Young, Caleb McDowall Wallace, James Alex-
ander Doty, Joseph McCrorty, Samuel Simpson Gregg, Dudley
Moore, Thomas Bronsdon Collins, Marcus Spurr, and Wilham Ii.
Hutchinson, on the nineteenth day of October last past, at the town
of St. Albans, in the State of Vermont, one of the United States of
America, being then and there armed with certain offensive weapons
and instruments, to wit: pistols commonly known and called revol-
vers, loaded with powder and balls and capped, in and upon one
Cyrus Newton Bishop, feioniously did stat an assault and him the
said Cyrus Newton Bishop in bodily fear and in danger of his aa
then and there feloniously did put, a a certain sum of money,
wit: to the amount of seventy thousand dollars current money of
the said United States of America, and of the value of seventy
thousand dollars current money aforesaid, of the moneys and ie
perty of the bank of St. Albans, a body corporate, constituted and
recoynized by the laws of the said State of Vermont, and the said
United States of America, from the person and custody, and pos-
session, and against the will of the said Cyrus Newton Bishop, then
and there feloniously and violently did steal, take, and carry away
against the form of the Statutes of the said State of Vermont, in such
case made and provided, and against the peace and dignity of the
The deponent, Daniel Greenleaf Thompson, upon his oath
deposeth and saith: I have compared the documents produced
and filed in this case, purporting to be copies of three Acts
of the Leyislature of Vermont incorporating and relating to St.
Albans bank, with the original Acts on file in the office of the
secretary of state of the said State of Vermont, in which office I
am a clerk, and declare the said documents to be true and exact
copies of the said original Acts respectively. The seal affixed to
each certificate appended to the said copies, is the seal of the said
State of Vermont; and the signatures, J. Gregory Smith, and G.
W. Bailey, jun., subscribed to “the said certificates, are the respec-
tive signatures of the governor and secretary of state of the said
State.
The foregoing deposition having been read over in the presence
of the prisoners so charged, the deponent declares that the same
contains the truth, and signed
DANIEL G. THOMPSON
Sworn, taken, and acknowledged,
before me, on the day, month,
and year, and at the place se |
inbefore mentioned.
Cuas. J. Courson, J.8.P.
Sh Bihe =e ES
SSeS
ae Se
ne See
= Se
ot Se RZ
Se —
~ <i ——
mye
(6
The foregoing deposition having been made and read in the pre-
sence and “hearing of the said prisoners, they are asked if they
have any questions to put to the deponent, and that having de-
clared by Mr. Kerr, their counsel, that they had none, this exami-
nation is closed.
Montreal, 12th November, 180-4.
DANIEL G. THOMPSON.
Cuas. J. Courson, J.S.P.
Mr, Johnson said he understood there was no further evidence
to adduce, for the prosecution, as to the charge of robbery of the
St. Albans bank. Ifaving closed the evidence in this part of the
‘ase, he believed the de fence should be called upon to state what
they intended to do. At any rate, as in other cases, the deposi-
tions should be read to the prisoners to see if they had anything to
say in reply.
‘Judge Coursol said he had desired to hear the wish of the coun:
sel for the Crown in the matter; and as they thought it advisable
that the voluntary examinations should be taken at this sti ge, sucht
should be done.
Hon, Mr, Abloit hoped that the Judge would not consider it
sufficient to have the opinion of the counsel for the Crown, on any
question that might arise in the case. And he submitted that at
least the form of hearin the prisoners’ counsel should be observed.
After some further remarks, at the request of Mr. Devlin, Judge
Coursol suspended proceedings for five minutes to allow the coun-
sel for the Crown and for the prosecution to consult together.
Mr. Devlin, ov veturnmg into Court, asked whether any evidence
would be produced on the other side. ‘The prosecution intended
adducing nothing further.
Judye Coursol.—Then the case is closed, and we must take the
voluntary examinations.
Mr. Devlin widerstood that no further evidence could be adduced
after the voluntary examinations. If that were to be the under-
standing, the counsel for the prosecution were prepared to proceed
with the voluntary examinations.
Judge Coursol.—The law is very clear on this point. It says that
when the examination for the prosecution is closed, the voluntary
statement must be taken, after which the magistrate calls upon the
accused to go upon their defence.
Mr. Devlin. —Under our statutes the voluntary statement is the
Jast proceeding.
Judye Coursol.—Will you shew me that ?
After some further discussion,
yy
PR
( 1
ance
the
the
what
posl-
iy to
OUTL-
sable
such
er it
any
at at
rved.
dye
oun-
ence
ided
the
iced
der-
eed
hat
ary
the
the
Judge Coursol asked what objection they had to the voluntary
statement.
Mr. Devlin wnswered they had none, but contended that the time
had not yet arrived for the taking of it, unless His TLonor decided
that the case was finally closed, and that after this voluntary state-
ment, no further testimony would be permitted.
Judge Coursol said that the English course of practice was, under
existing circumstances, the safest one to follow, and, as laid down in
‘¢ Saunders on Summary Convictions,” would guide his course in
this case.
Mr. Devlin said one of the reasons for wishing to defer the
voluntary examinations until they ascertained whether His Honor
would permit the adduction of further © vidence, was their belief that
they had a right now to call on the counsel for the defence to make
any application they liked.
Judge Coursol.—I rule that, before the prisoners are called upon
to give answers at all, or before the question as to adducing further
evidence is settled, the voluntary examinations be taken. It must
be understood that I have never expressed any opinion as to whe-
ther the voiuntary examinations are requisite or not; but that [
order them to be taken because the counsel for the Crown have
expressed a wish to that effect.
VOLUNTARY STATEMENT
Of the Prisoners charged before the Judge of the Sessions, with
having on the 19th October last, at St. Albans, in the State of
Vermont, one of the United States of America, feloniously
assaulted and put in fear of his life, and stolen from one Cyrus
Newton Bishop, the sum of 870,000 current money of the
United States.
PROVINCE OF CANADA, uae i ;
Disirict of Montreal, POLICE OFFICK.
CITY OF MONTREAL,
Bennett H. Young, late of the town of St. Albans, in the State
of Vermont, one of the United States of America, stands charged
78
before the undersigned, Charles Joseph Coursol, Esquire, Judge
of the Sessions of the Peace in and for the city of Montreal, this
twelfth day of November, in the year of our Lord one thousand
eight hundred and sixty-four, for that the said Bennett H. Young
and others, to wit: Samuel Eugene Lackey, Squire Turner
Teavis, Alamanda Pope Bruce, Charles Moore Swager, George
Scott, Caleb McDowall Wallace, James Alexander Doty, Joseph
McGrorty, Samuel Simpson Gregg, Dudley Moore, Thumas Brons-
don Collins, Marcus Spurr, and William IH. Hutchinson, on the
nineteenth day of October last past, at the town of St. Albans
aforesaid, in the said State of Vermont, and within the jurisdiction.
of the said United States of America, being then and there armed
with certain offensive weapons and instruments, to wit, pistols, com-
monly known and called revolvers, loaded with powder and balls,
and capped, in and upon one Cyrus Newton Bishop felon:ously did
make an assault, and him, the said Cyrus Newton Bishop, in bodily
fear and in danger of his life then and there feloniously did put,
and a certain sum of money, to wit, to the amount of seventy
thousand dollars current money of the said United States of
America, and of the value of seventy thousand dollars current
money aforesaid, of the moneys and property of the bank of St.
Albans, a body corporate, constituted and recognized by the laws
of the said State of Vermont, and of the said United States of
America, from the person, custody and possession, and against the
will, of the said Cyrus Newton Bishop, then and there feloniously
and violently did steal, take, and_carry away, against the form ot
the statutes of the said State of Vermont in such case made and
provided, and against the peace and dignity of the said State; and
the said charge being read to the said Bennett H. Young, and the
witnesses for the pr ‘osecution,—Cyrus Newton Bishop, dw ard C,
Knight, James F. Desrivieres, Aaron B. Kemp, Leonard L. Cross,
James R. Armington, Sharles A. Marvin, George Roberts, Ros-
well A. Ellis, George W. Fairchild, John McLoughlin, Henry N.
Whitman, Marcus W. Beardsley, James Saxe, Daniel G. Thomp-
son, and John O’ Leary,—being severally examined in his presence,
the said Bennett H. Young is now addressed by me as follows :
‘* Having heard the evidence, do you wish to say anything in
‘answer to the charge? You are not obliged to say anything,
‘unless you desire to do so; but whatever you say will be taken
“down in writing, and may be given im evidence against you at
“ your trial.”
Whereupon the said Bennett H. Young saith as follows :
I ama native of Kentucky, and a citizen of the Confederate
—"
ee
Age
this
and
ung
ner
ree
eph
ons-
the
ans
tion.
med
om-
alls,
did
dily
put,
onty
; of
rent
St.
laws
3 ot
the
isly
m or
and.
and
the
te
oe
i9
States, to which [ owe allegiance. I am a commissioned. officer in
the army of the Confederate States, with which the United States
are now at war. I owe no allegiance to the United Stater — I here-
with produce my commission as first lieutenant in the Confederate
States army, and the instructions [ received at the time that
commission was conferred upon me ; reserving the right to put in
evidence further instructions I have received at such time and in
such manner as my counsel shall advise. Whatever was done at
St. Albans was done by the authority and order of the Confederate
Government. I have not violated the neutrality laws of either
Canada or Great Britain. Those whe were with me at St. Albans
were all officers or enlisted soldiers of the Confederate army, and
were then under my command. They were sucn before the 19th
of October last, and their term of enlistment has not yet expired.
Several of them were prisoners of war, taken in battle by the Fede-
al forces, and retained as such, from which imprisonment they
scaped. The expedition was not set on foot or projected in
Canna: The course I intended to pursue in Vermont, and which
[ was able to carry out but partially, was to retaliate in some
measure for the barbarous atrocities of Grant, Butler, Sherman,
Hunter, Milroy, Sheridan, Grierson, and other Y ankee officers,
except that I would scorn to barm women and children under any
provocation, or unarmed, defenceless, and unresisting citizciis,
even Yankees, or to plunder for my own benefit. I am not
prepared for the full defence of myself and iy command without
communication with my government at Richmond, and inasmuch
as such communication is interdicted hy the Yankee government,
by land and by sea, I do not think [ can be ready for such full
defence under thirty days, during which time I hope to be able
to obtain, material important testimony without the consent of said
Yankee government, from Richmond.
And further the Examinant saith not, and hath signed, the fore-
going having been previously read in his presence.
(Signed) BENNETT II. YOUNG.
Taken and acknowledged before |
me, at the Police Office in the {
said city of Montreal, the day (
and year abcve mentioned,
(Signed ) Cras. J. Coursor, J.8.P.
ee Sa ¥
=
80
Lieutenant Young's Commissions.
CONFEDERATE STATES OF AMERICA, )
Wark DEPARTMENT,
Richmond, June 16th, 1864, \
Sir,—You are hereby informed that the President has appointed
you First Licutenant, under the .Act 121, approved February 17th,
1864, in the Provisional Army in the service of the Confederate
States, to rank as such from’ the sixteenth day of June, 1864.
Should the Senate at their next session advise and consent thereto,
you will be commissioned accordingly.
Immediately on receipt hereof, please to communicate to this
Department, through the Adjutant and Inspector General’s Office,
your acceptance or non-acceptance of said appointment, and, with
your letter of acceptance, return to the Adjutant and Inspector
General the oath herewith enclosed, properly filled up, subscribed,
and attested, reporting at the same time your age, residonce, when
apponited, and the St: ite in which you were born.
Should you accept, you will report for duty to
(Signed) Jas. A. Seppon, Secretary of War.
Lieut. Bennet II. Young, &c., &e., PLA...
CONFEDERATE STATES OF AMERICA,
Wak DEPARTMENT.
Richmond, Va., June 16th, 1864.
Licut. B. IL. Young is hereby authorized to organise for special
service, & company not to exceed twenty in number from those who
helong to the service and areat the time beyond the Confederate
States,
They will be entitled to their pay, rations, clothing, and trans-
portation, but no other compensation for any service which t!ey
may be called upon to render,
The organisation will he under the control of this Department,
and liable to be disbanded at its pleasure, and the members
returned to their respective companies.
Jas. A. SEDDON, Secretary of War.
me
ee eS ee ae)
a eee
~ aft on
yy
81
PROVINCE OF CANADA, )
District of Montreal, , POLICE OFFICE.
CITY OF MONTREAL.
Samuel Eugene Lackey, late of the town of St. Albans, in the
State of Vermont, one of the United States of America, stands
charged before the undersigned, Charles Joseph Coursol, Esquire,
J udge of the Sessions of the Pence’ in and for the city of Montreal.
this twelfth day of November, in the year of our Lord one thousand
eight hundred and sixty-four, for that the said Samuel Eugene
Lackey and others, to wit: Bennett II. Young, Squire Turner
Teavis, Alamanda Pope Bruce, Charles Moore Swager, George
Scott, Caleb McDowall Wallace, James Alexander Doty, Joseph
McGrorty, § Samuel Simpson Grege , Dudley Moore, Thomas Brons-
don Collins, Marcus Spurr, and William’ H. Hutchinson, on the
nineteenth day of October last past, at the town of St. Albans
aforesaid, in the said State of Vermont, and within the jurisdiction
of the said United States of America, being then and there armed
with certain offensive weapons and instruments, to wit, pistols, com-
monly known and called revolvers, loaded with powder and balls,
and capped, in and upon one Cyrus Newton Bishop feloniously did
sy an assault, and him, the said Cyrus Newton Bishop, in bodily
fear and in danger of his life then ‘and there feloniously did put,
ud a certain sum of money, to wit, to the amount of seventy
thousand dollars current money of the said United States of
America, and of the value of seventy thousand dollars current
money aforesaid, of the moneys and property of the bank of St.
Albans, a body corporate, constituted and recognized by the laws
of the said State of Vermont, aud of the said United’ States of
Americ, from the person, custody and possession, and against the
will, of the said Cyrus Newton Bishop, then and there feloniously
an? violently did steal, take, and carry away, against the form of
the statutes of the said State of Vermont in such case made and
provided, and against the peace and <lignity of the said State; and
the said charge deing read to the said Samuel E. Lackey, and the
witnesses for the prosecution, —C ‘yrus Newton Bishop, Edward C,
Knight, Jumes I. Desrivicres, Aaron B. Kemp, Leonard L. Cross,
James | - Armington, Charles A. Marvin, George Roberts, Ros-
well A. Ellis, George W. Fairchild, John MeLonghin, Henry N.
W hitman, Mareus W. Beardsley, James Saxe, Daniel G. 'Thomp-
son, and John O’ Leary,—being severally evainined | in his presence,
the said Samuel Hugene Lackey is now addressed by me as follows:
“ Having heard the evidence, do you wish to say anything in
‘“‘ answer to the charge? You are ‘not obliged to say anything,
“ unless you desire to do so; but whatever you say will be taken
G
82
a _ down in writing, and may be given in evidenze against you at
our trial.”
Whereupon the said Samuel Hugere Lackey saith as follows :
I am a native of the Confederate States, of which government I
now owe allegiance. I have been thrown upon this government
not designedly, but by the fortunes of war. I have violated no
of this country, or of Great Britain, unless it be unlawful for ¢
Confederate soldier, driven by the hard fate of war, to ask the
protection of the British flag. Iam a soldier of the Confederate
States army, having been recognized as such by the so-called
United States government, from the fact of having been held as a
prisoner of war, my command now being held as prisoners of war
at Camp Douglas, Ill., from which place | made my escape through
the mercenary character of these gallant Yankees, a people who
make war for plunder, and are bravest when they make war upon
women and children. I have, during the captivity of my com-
mand, been detached for especial service inside the enemy’s lines.
under the command of Lieut. Bennett H. Young.
And further the Uxaminant saith not, and hath signed, the fore-
going having beeu previously read in his »resence. —
(Signed) SAMUEL EUGENE LACKEY.
Taken and ackaowledged before
me, at the Police Office in the
seid: city of Montreal, the day (
and year above mentioned, |
(Signed) Cuas. J. Courson, J.8.P.
OVINCE OF CANAD:
crs envy arte hn % POLICE OFFICE.
CITY OF MONTREAL.
Marcus Spurr, late of the town of St. Albans, in the State of
Vermont, one of the United Stats of America, stands charged
before the undersigned, Chi wles Joseph Coursol, Ksquire, Judge of the
Sessions of the Peace in and for the city of Montreal, this twelfth day
of November, in the year of our Lord one thousand eight hundred
and sixty-four, for that the said Mareus Spurr, and others. to wit:
Samuel Eugene Lackey, Squire Turner Teavis, Alamanda Pope
Brace, Charles Moore Swager, Bennett H. Young, Caleb Me Dowall
Wallace, !ames Alexander Doty, Joseph MeGrorty, t Samuel Simpson
Gregg, Lucley Moore, Thomas Bronsdon € tolling, George Scott,
and William LU. Hutchinson, on the nineteenth day of October
last past, at the town of St. Albans aforesaid, in the said State of
Vermont, and within the jurisdiction of the satd United States of
83
America, being then and there armed with certain offensive weapons
and instruments, to wit, pistols, commonly known and called revolvers,
loaded with powder and balls, and capped, in and upon one Cyrus
Newton Bishop, feloniously did make an assault, and him, the said
Cyrus Newton Bishop, in bodily fear and in danger of his life then
and there feloniously did put, and a certain sum of money, to wit,
to the amount of seventy thousand dollars current money of the said
United States of America, and of the value of seventy thousand
dollars current money aforesaid, of the moneys and property of the
bank of St. Albans, a body corporate, constituted and recognized
by the laws of the said State of Vermont, and of the said United
States of America, from the person, custody and possession, and
against the will, of the said Cyrus Newton Bishop, then and there felo-
niously and violently did steal, take, and carry away, against the form
of the statutes of the said State of Vermont in such case made and
provided, and against the peace and dignity of the said State; and
the said charge being read to the said Marcus Spurr, and the witnesses
for the prosecution,—Cyrus Newton Bishop, Edward C. Knight,
James I. Desrivicres, Aaron B. Kemp, Leonard M. Cross, James R.
Armington, Charles A. Marvin, George Roberts, Roswell A. Ellis,
George W. Fairchild, John McLoughlin, Henry N. Whitman, Marcus
W. Beardsle »y, James Saxe, Daniel G. Thompson, and John (Leary,
—being severally examined in his presence, the said Marcus Spurr
is now ‘ad lressed by me as follows: ** Hlaving heard the evidence,
“do you wish to say anything in answer to the charge? You are
“not obliged to say anything, unless you desire to do so ; but what-
“ever you say will be taken down in writing, and may be given in
“evidence against you at your trial.”
Whereupon the said Marcus Spurr saith as follows:
Am a native of Kentucky ; an enlisted soldier of the Confederate
States army, and my time has not yet expired. I owe no alleyi-
anee to the so-called United States, but to the Confederate States
of America. I was held as a prisoner of war ina Yankee Bastile,
and by bribing a ** Yankee pay-trivt” aud by daring, escaped.
Afterwards was engaged at different times with soldiers of the afore-
mentioned army in doing duty inthe Yankee States. Last summer
at Chicago, L placed myself under the command of Lieut. Young.
I was in the States when the raid upon St. Albans, Vt., was con-
coe ae by Lieut. Young and others. What I may have done at
Albans, I did ag a soldier of the Confederate States army, and
in ae with orders from Lieut. Young of said army. In
doing this, I have violated no law of Canada or Great Britain. I
have lost kindred, and have had kindred plundered.
==
A TREY EN me ne
ase
84
And further Examinant saith not, and hath signed, the foregoing
having been previously read in his presence.
(Signed) MARCUS SPURR.
Taken and acknowledged before
me, at the Police Office in te |
said city of Montreal, the day
and year above mentioned.
(Signed) Cuas. J. Courson, J.8.P.
PROVINCE OF CANADA, ) 7
District of Montreal, ( POLICE OFFICE.
CITY OF MONTREAL.
Alamanda Pope Bruce, late of the town of St. Albans, in the
State of Vermont, one of the United States of America, stands
charged before the undersigned, Charles Joseph Coursol, Esquire,
Judge of the Sessions of the Peace in and for the city of Montreal,
this twelfth day of November, in the year of our Lord one thou-
sand eight hundred and sixty-four, for that the said Alamanda
Pope Bruce and others, to wit: Bennett H. Young, Samuel Eugene
Lackey, Squire Turner ‘Teavis, Charles Moore Swager, George
Scott, Caleb McDowall Wallace, James Alexander Doty, Joseph
McGrorty, Samuel Simpson Gregg, Dudley Moore, ‘Thomas Brons-
don Collins, Marcus Spurr, and William H. Hutchinson, on the
nineteenth day of October last past, at the town of St. Albans
aforesaid, in the said State of Vermont, and within the jurisdiction
of the said United States of America, being then and there armed
with certain offensive weapons and instruments, to wit, pistols, com-
monly known and called revolvers, loaded with powder and balls,
and capped, in and upon one Cyrus Newton Bishop feloniously did
make an assault, and him, the said Cyrus Newton Bishop, in bodily
fear and in danger of his life then and there feloniously did put,
and a certain sum of money, to wit, to the amount of seventy
thousand dollars carrent money of the said United States of
America, and of the value of seventy thousand dollars current
money aforesaid, of the moneys and property of the bank of St.
Albans, a body corporate, constituted and recognized by the laws
of the said State of Vermont, and of the said United States of
America, from the person, custody and possession, and against the
will of the said Cyrus Newton Bishop, then and there feloniously
and violently did steal, take, and carry away, against the form of
the statutes of the said State of Vermont in such case made and
provided, and against the peace and dignity of the said State ; and
the said charge being read to the said Alamanda Pope Bruce,
and the witnesses for the prosecution,—Cyrus Newton Bishop,
Edward C. Knight, James F. Desrivieres, Aaron B. Kemp, Leonard
Pl
ing
the
nds
ure,
‘eal,
hou-
nda
rene
ree
seph
ons-
the
ans
tion
ned
om-
uls,
did
lily
yut,
85
L. Cross, James R. Armington, Charles A. Marvin, George Roberts,
Roswell A. Ellis, George W. Fairchild, John McLoughlin, Henry N.
Whitman, Marcus W. Beardsley, James Saxe, Daniel G. Thomp-
son, and John O’ Leary,—being severally examined in his presence,
the said Alamanda Pope Bruce is now addressed by me as follows:
“ Having heard the evidence, do you wish to say anything in
“answer to the charge? You are not obliged to say anything,
‘unless you desire to do so; but whatever you say will be taken
‘¢ down in writing, and may be given in evidence against you at
“¢ your trial.”
Whereupon the said Alamanda Pope Bruce saith as follows :
I am a native of Kentucky, and am a Confederate States soldier.
My term has not expired. I was made prisoner in June last by
Yankee troops, and made my escape from a car whilst being earried
as such to the Yankee prison at Rock Island. I joined Lieut.
Young at Chicago last August. I have violated no laws of Canada
or Great Britain ; whatever I may have done in the so-called United
States has been an act of war, as my government the Confederate
States, are at war with the Yankees, and I owe allegiance to it,
and am sworn to do my duty as a soldier. I am told that I am
accused of having shot Morrison at St. Albans; if I had shot him
it was my duty to do so. I am taken for a comrade who did do
it who is not here. I do not say this to screen myself, but as it is
the truth I justify the act as an act of war, though Morrison was
not aimed at, but the armed man who skulked behind him. I have
lost kindred in this war, a cousin brutally murdered in Camp
Douglas whilst unarmed, and doing nothing to provoke it. Yankee
plundering and cruel atrocities without parallel, provoked the
attack on St. Albans as a mild retaliation.
And further the Examinant saith not, and hath signed, the fore-
going having been previously read in his presence.
(Signed) ALAMANDA POPE BRUCE.
Taken and acknowledged before
me, at the Police Office in the |
said city of Montreal, the day |
and year above mentioned. |
(Signed) Cuas. J. Courson, J.S.P.
PROVINCE OF CANADA, areal
District of Montreal, POLICE OFFICE.
CITY OF MONTREAL.
Charles Moore Swager, late of the town of St. Albans, in the
State of Vermont, one of the United States of America, stands
charged before the undersigned, Charles Joseph Coursol, Esquire,
Judge of the Sessions of the Peace in and for the city of Montreal,
Pe ne ee
Se.
om:
A eR a
2S gk Sn eg eo OS es
86
this twelfth day of November, in the year of our Lord one thousand
eight panded. and sixty-four, for that the said Charles Moore
Swager and others, to wit: Bennctt H. Young, Samuel Eugene
Lackey, Squire Turner Teavis, Alamanda Pope Bruce, George
Scott, Caleb McDowall Wallace, James Alexander Doty, Joseph
McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas Brons-
don Collins, Marcus Spur, and William If, Hutchison, on the
nineteenth day of October last past, at the town of St. Albans
aforesaid, in the said State of Vermont, and within the jurisdiction
of the said United States of America, being then and there armed
with certain offensive weapons and instruments, to wit, pistols, com-
monly known and called revolvers, loaded with powder and balls,
and capped, in and upon one Cyrus Newton Bishop feloniously did
make an assault, and him, the said Cyrus Newton Bishop, in bodily
fear and in danger of his life then and there feloniously did put,
and a certain sum of money, to wit, to the amount of seventy
thousand dollars current money of the said United States of
America, and of the value of seventy thousand dollars current
money aforesaid, of the moneys and property of the bank of St.
Albans, a body corporate, constituted and recognised by the laws
of the said State of Vermont, and of the said United States of
America, from the person, custody, and possession, and against the
will, of the sail Cyrus Newton Bishop, then and there feloniously
and haan did steal, take, and carry away, against the form of
the statutes of the s said State of Vermont in such case made and
provided, and against the peace and dignity of the said State ; and
the said charge being read to the said Charles Moore Swager, and
the witnesses ar the : prosecution,—Cyrus Newton Bishop, E dw ard
C. Knight, James F. Desrivieres, Aaron 3B. Kemp, Leonard L.
Cross, James . Armington, Charles A. Marvin, George Roberts,
Roswell A. wills, George W. Fairchild, John MeLoughlin, Henry
N. Whitman, Marcus W. Beardsley, James Saxe, Daniel G.
Thompson, and John O’Leary,—being severally examined in his
presence, the said Charles Moore Swaver i is now addressed by me
as follows : ** TIaving heard the evidence, do you wish to say any-
‘¢ thing in answer to the cha urge You are not obliged to say any-
se « thing, unless you desire to ‘do so; but whatever you say will be
‘taken down in writing, and may be sviven in evidence against you
“at your trial.”
Whereupon the said Charles Moore Swager saith as follows :
IT am a Kentuckian and a Confederate soldier, owing no allegi-
ance to any government but the Confederate States of America.
And as a soldier I feel it my duty to harrass and annoy the army
and the navy of the United States, cripple and destroy its shipping
and commerce, capture its towns and cities, and otherwise damage
Se CARA ENQUIRE MCE wept +
a ee ee eee ee ee ee ee ee ee ee i ees |
SS GEE SRE Th aie He
87
if possible, a government which seeks our destruction. Any acts I
might have committed at St. Albans, Vt., I did in the capacity of
a Confederate soldier, acting under orders of Lieut. Bennett H.
Young, a commissioned officer in the Confederate army. I have
violated »_ law of Canada or Great Britain.
And further the Examinant saith not, and hath signed, the fore-
going having been previously read in his presence.
(Signed) CHARLES MOORE SWAGER.
Taken and acknowledged before >
me, at the Police Office in the |
said city of Montreal, the day (
and year above mentioned.
(Signed) Cuas. J. Courson, J.8.P.
PROVINCE OF CANADA, ; :
District of Montreal, POLICE OFF ‘KE.
CITY OF MONTREAL.
Maleh VWeDowall Wallace, late of the town of St. Albans, in the
State -ermont, one of the United States of America, stands
charged before the undersigned, Charles Joseph Coursol, Esquire,
Judge of the Sessions of the Peace in and for the city of Montreal,
this twelfth day of November, in the year of our Lord one thousand
eight hundred and sixty-four, for that the said Caleb McDowall
Wallace, and others, to wit: Bennett H. Young, Samuel Eugene
Lackey, Squire Turner Teavis, Alamanda Pope Bruce, Charles
Moore Swayer, George Scott, James Alexander Doty, Joseph Me-
Grorty, Samuel Simpson Gregg, Dudley Moore, ‘Thomas Bronsdon
Collins, Marcus Spurr, and William H. Hutchinson, did, on the
nineteenth day of October last past, at the town of St. Albans
aforesaid, in the said State of Vermont, and within the jurisdiction
of the said United States of America, being then and there armed
with certain offensive weapons and instruments, to wit, pistols com-
monly known and called revolvers, loaded with powder and balls,
and capped, in and upon one Cyrus Newton Bishop feloniously did
make an assault, and him the s ‘tid Cyrus Newton Bishop in bodily
fear and in danger of his life then and there feloniously did put,
and a certain sum of money, to wit, to the amount of seventy
thousand dollars current money of the said United States of America,
and of the value of seventy thousand dollars current money afore-
said, of the moneys and property of the bank of St. Albans, a body
corporate, constituted and recognized by the laws of the said State
of Vermont, and of the said United States of Ameri ‘a, from the
person, custody, and possession, and against the will, of the said
Cyrus Newton Bishop, then and there fel oniously and violently did
steal, take, and carry away, against the form of the statutes of the
said State of Vermont in such case made and provided, and against
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the peace and dignity of the said State; and the said charge being:
read to the said Caleb McDowall Wallace, and the witnesses for the
prosecution,—Cyrus Newton Bishop, Edward C. Knight, James
F. Desrivieres, Aaron B. Kemp, Leonard L. Cross, James R.
Armington, Charles A. Marvin, George Roberts, Roswell A. Ellis,
George W. Fairchild, John McLoughlin, Henry N. Whitman, Marcus
W. Beardsley, James Saxe, Daniel G. Thompson, and John
O’Leary,—being severally examined in his presence, the said Caleb
McDowall Wallace is now addressed by me as follows: “ Having .
‘“‘ heard the evidence, do you wish to say anything in answer to the
“charge? You are not obliged to say anything, unless you desire
“ to do so; but whatever you say will be taken down in writing and
‘‘ may be given in evidence against you at your trial.”
Whereupon the said Caleb McDowall Wallace saith as follows:
IT am a native of Kentucky ; but at the incipiency of the war
now pending between the United States and the Confederate States
of America, I was living in the State of Texas,—one of the Con-
federate States of America. I owe no allegiance to the United
States, but my alleziance is due solely to the Confederate States of
America. Whatever I may have done at St. Albans, I did as a Con-
federate soldier, and in obedience to the order and under the
instructions of Lt. B. H. Young,—a commissioned officer of the
Confederate States of America,—my commander at that time. I
have not violated any law of Canada or Great Britain.
And further the Examinant saith not, and hath signed, the fore-
going having been previously read in his presence.
(Signed) CALEB McDOWALL WALLACE.
Taken and acknowledged before
me, at the Police Office in the
said city of Montreal, the day
and year above mentioned.
(Signed) Cuas. J. Courso, J.8.P.
PROVINCE OF CANADA,
District of Montreal, POLICE COURT.
CITY OF MONTREAL.
Joseph McGrorty, late of the town of St. Albans, in the State
of Vermont, one of the United States of America, stands charged
before the undersigned, Charles Joseph Coursol, Esquire, Judge of
the Sessions of the Peace in and for the city of Montreal, this
twelfth day of November, in the year of our Lord one thousand
eight hundred and sixty-four, for that the said Joseph McGrorty
and others, to wit: Bennett H. Young, Samuel Eugene Lackey,
Squire Turner Teavis, Charles Moore S:vager, “teorge Scott,
Caleb McDowall Wallace, James Alexander Doty, Alamanda
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Pope Bruce, Samuel Simpson Gregg, Dudley Moore, Thomas
Bronsdon Collis, Marcus Spurr, and William H. Hutchinson, on
the nineteenth day of October last past, at the town of St. Albans
aforesaid, in the said State of Vermont, and within the jurisdiction
of the said United States of America, being then and there armed
with certain offensive weapons and instruments, to wit, pistols, com-
monly known and called revolvers, loaded with powder and balls,
and capped, in and upon one Cyrus Newton Bishop feloniously did
make an assault, and him, the said Cyrus Newton Bishop, in bodily
fear and in danger of his life then and there feloniously did put,
and a certain sum of money, to wit, to the amount of seventy
thousand dollars current money of the said United States of
America, and of the value of seventy thousand dollars current
money aforesaid, of the moneys and property of the bank of St.
Albans, a body corporate, constituted and recognized by the laws
of the said State of Vermont, and of the said United States of
America, from the person, custody, and possession, and against the
will, of the said Cyrus Newton Bishop, then and there teloniously
and violently did steal, take, and carry away, against the form of
the statutes of the said State of Vermont in such case made and
provided, and against the peace and dignity of the said State; and
the said charge being read to the said Joseph McGrorty, and the
witnesses for the prosecution,—Cyrus Newton Bishop, Edward C.
Knight, James F. Desrivieres, Aaron B. Kemp, Leonard L. Cross,
James R. Armington, Charles A. Marvin, George Roberts, Ros-
well A. Ellis, George W. Fairchild, John McLoughlin, Henry N.
Whitman, Marcus W. Beardsley, James Saxe, Daniel G. Thomp-
son, and John O’Leary,—being severally examined in his presence,
the said Joseph McGrorty is now addressed by me as follows:
‘“‘ Having heard the evidence, do you wish to say anything in
‘answer to the charge? You are not obliged to say anything,
“unless you desire to do so; but whatever you say will be taken
‘¢ down in writing, and may be given m evidence against you at
“¢ your trial.”
Whereupon the said Joseph McGrorty saith as follows :
I am no criminal, nor are any of my comrades. ‘The Yankees
know this, and if we had been captured within their boundaries,
either before or after the capture of St. Albans, we would have been
tried, not by civil law, but by a military commission or drum-head
court-martial. But they found us on a neutral territory, and now
seek by Yankee ingenuity and the boasted influence of their
government to get us into their power. I ama native of Ireland,
and a naturalized citizen of the Confederate States of America,
and of the State of Texas, and owe no allegiance to the United
States, with which my country is at war. I am also a soldier of
90
the Confederate States army, and of the 6th corp Cav. Battalion.
I was under General Morgan, in his expedition in Kentucky, last
summer. I was wounded there, and remained in the State some
weeks. When I recovered from the effects of my wound, I reported
to Lieut. Young, for duty. Whatever I may have done in the capa-
city of a soldier, I feel that I did no more than my duty as a soldier,
in obeying the orders of my commanding officer, Lieut. Young, a
commissioned officer of the Confederate States army. I have
violated no law of Great Britain or Canada,—so careful was I in
this respect, that when I found myself on Canadian soil, I threw
away my arms.
And further the Examinant saith not, and hath signed, the fore-
going having been previously read in his presence.
(Signed) JOSEPH McGRORTY.
Taken and acknowledged before
me, at the Police Office in the
said city of Montreal, the day
and year above mentioned.
(Signed) Cuas. J. Coursor, J.S.P.
PROVINCE OF CANADA, ?
District of Montreal,
CITY OF MONTREAL.
George Scott, late of the town of St. Albans, in the State
of Vermont, one of the United States of America, stands charged
before the undersigned, Charles Joseph Coursol, Esquire, Judge
of the Sessions of the Peace in and for the city of Montreal,
this twelfth day of November, in the year of our Lord one thou-
sand eight hundred and sixty-four, for that the said George Scott
and others, to wit: Bennett H. Young, Samuel Eugene Lackey,
Squire Turner Teavis, Alamanda Pope Bruce, Charles Moore
Swager, Caleb McDowall Wallace, James Alexander Doty, Joseph
McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas Brons-
don Collins, Marcus Spurr, and William H. Hutchinson, on the
nineteenth day of October Jast past, at the town of St. Albans
aforesaid, in the said State of Vermont, and within the jurisdiction
of the said United States of America, being then and there armed
with certain offensive weapons and instruments, to wit: pistols
commonly known and called revolvers, loaded with powder and
balls, and capped, in and upon one Cyrus Newton Bishop felo-
niously did make an assault, and him the said Cyrus Newton
Bishop in bodily fear and in danger of his life then and tiere felo-
niously did put, and a certain sum of money, to wit: to the amount
of seventy thousand dollars current money of the said United
States of America, and of the value of seventy thousand dollars
POLICE COURT.
Tedd
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91
current money aforesaid, of the moneys and property of the bank
of St. Albans, a body corporate, constituted and recognized by the
laws of the said State of Vermont, and the said United States of
America, from the person, custody, and possession, and against the
will, of the said Cyrus Newton Bishop, then and there feloniously
and violently did steal, take, and carry away, against the form of
the statutes of the said State of Vermont, in such case made and
provided, and against the peace and dignity of the said State;
and the said charge being read to the said George Scott, and the
witnesses for the prosecution,—Cyrus Newton Bishop, Edward C.
Knight, James F. Desrivieres, Aaron B. Kemp, Leonard L. Cross,
James R. Armington, Charles A. Marvin, George Roberts, Ros-
well A. Ellis, George W. Fairchild, John McLoughlin, Henry N.
Whitman, Marcus W. Beardsley, James Saxe, Daniel G. Thomp-
son, and John O’Leary,—being severally examined in his presence,
the said George Scott is now addressed by me as follows:
‘‘ Having heard the evidence, do you wish to say anything in
‘“‘answer to the charge? You are not obliged to say anything,
‘unless you desire to do so; but whatever you say will be taken
“‘ down in writing, and may be given in evidence against you at
“ your trial.””
Whereupon the said George Scott saith as follows:
I am a Confederate soldier. I am anative of Kentucky, and owe
no allegiance to the Federal Government, but to the Confederate
States of America. Whatever I may have done at St. Albans, I
did as a soldier, acting under the orders of Tieut. Young, an officer
of the Confederate army. I have violated no law of Canada or
Great Britain.
And further the Examinant saith not, and hath signed, the fore-'
going having been previously read in his presence.
(Signed) GEORGE SCOTT.
Taken and acknowledged before
me, at the Police Office in i |
said city of Montreal, the day
and year above mentioned. ;
(Signed) Cuas. J. Coursoi, J.S.P.
PROVINCE OF CANADA,
District of Montreal, POLICE OFFICE.
CITY OF MONTREAL.
William H. Hutchinson, late of the town of St. Albans, in tine
State of Vermont, one of the United States of America, stands
charged before the undersigned, Charles Joseph Coursol, Esquire,
Judge of the Sessions of the Peace in and for the city of Montreal,
this twelfth day of November, in the year of our Lord one thousand
92
eight hundred and sixty-four, for that the said William H. Hutch-
inson and others, to wit: Bennett H. Young, Samuel Eugene
Lackey, Squire Turner Teavis, Alamanda Pope Bruce, Charles
Moore Swager, George Scott, Caleb McDowall Wallace, James
Alexander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dud-
ley Moore, Thomas Bronsdon Collins, and Marcus Spurr, on the
nineteenth day of October last past, at the town of St. Albans
aforesaid, in the said State of Vermont, and within the jurisdiction
of the said United States of America, being then and there armed
with certain offensive weapons and instruments, to wit: pistols
commonly knowr. and called revolvers, loaded with powder and balls,
and capped, in and upon one Cyrus Newton Bishop feloniously did
make an agsault, and him, the said Cyrus Newton Bishop, in bodily
fear and in danger of his life then and there feloniously did put,
and a certain sum of money, to wit: to the amount of seventy thou-
sand dollars current money of the said United States of America,
and of the value of seventy thousand dollars current money afore-
said, of the moneys and property of the bank of St. Albans, a body
corporate, constituted and recognized by the laws of the said State
of Vermont, and of the said United States of America, from the
person and custody and possession, and against the will, of the said
Cyrus Newton Bishop, then and there feloniously and violently did
steal, take, and carry away, against the form of the Statutes of the
said State of Vermont, in such case made and provided, and against
the peace and dignity of the said State; and the said charge being
read to the said William H. Hutchinson, and the witnesses for the
prosecution,—Cyrus Newton Bishop, Edward C. Knight, James
F. Desriviercs, Aaron B. Kemp, Leonard L. Cross, James R.
Armington, Charles A. Marvin, George Roberts, Roswell A. Ellis,
George W. Fairchild, John McLoughlin, Henry N. Whitman,
Marcus W. Beardsley, James Saxe, Daniel G. Thompson, and John
O’Leary,—being severally examined in his presence, the said
William H. Hutchinson is now addressed by me as follows : “* Having
“¢ heard the evidence, do you wish to say anything in answer to the
*‘ charge ? You are not obliged to say anything, unless you desire
** to do so; but whatever you say will be taken down in writing,
‘¢ and may be given in evidence against you at your trial.”’
Whereupon the said Wii!izm Hf. Hutchinson saith as follows:
I am a native of the State of Georgia, and a citizen of the Con-
federate States of America. Have been an officer in the Confede-
rate army since April, 1861. I am not guilty of the charge brought
against me. I owe no allegiance to the Yankee government. In
December, 1862, was robbed by the Yankee vandals of property
valued at over $50,000. Have not violated the laws of Canada
or Great Britain. I am perfectly willing to share the fate of my
countrymen and fellow-soldiers.
ae
ee
es rest
haa
93
And further the Examinant saith not, and hath signed, the fore-
going having been previously read in his presence.
(Signed) WILLIAM H. HUTCHINSON.
Taken and acknowledged before
me, at the Police Office in the
said city of Montreal, the day
and year above mentioned.
(Signed) Cuas. J. Courson, J.S.P.
PROVINCE OF CANADA,
District of Montreal, POLICE OFFICE.
CITY CF MONTREAL.
Dudley Moore, late of the town of St. Albans, in the State of
Vermont, one of the United States of America, stands charged
before the undersigned, Charles Joseph Coursol, Esquire, Judge
of the Sessions of the Peace in and for the city of Montreal, this
twelfth day of November, in the year of our Lord one thousand
eight hundred and sixty-four, for that the said Dudley Moore and
others, to wit: Bennett IH. Young, Samuel Eugene Lackey, Squire
Turner Teavis, Alamanda Pope Bruce. Charles Moore Swager,
George Scott, Caleb McDowall Wallace, James Alexander Doty,
Joseph McGrorty, Samuel Simpson Gregg, Thomas Bronsdon
Collins, Marcus Spurr, and William H. Hutchinson, on the nine-
teenth day of October last past, at the town of St. Albans aforesaid,
in the said State of Vermont, and within the jurisdiction of the
said United States of America, being then and there armed with
certain offensive weapons and instruments, to wit, pistols, com-
monly known and called revolvers, loaded with powder and balls,
and capped, in and upon one Cyrus Newton Bishop feloniously did
make an assault, and him the said Cyrus Newton Bishop, in bodily
fear and in danger of his life then and there feloniously did put,
and a certain sum of money, to wit, to the amount of seventy
thousand dollars current money of the said United States of
America, and of the value of seventy thousand dollars current
money aforesaid, of the moneys and property of the bank of St.
Albans, a body corporate, constituted and recognized by the laws
of the said State of Vermont, and of the said United States of
America, from the person, custody and possession, and against the
will of the said Cyrus Newton Bishop, then and there feloniously
and violently did steal, take, and carry away, against the form of
the statutes of the said State of Vermont in such case made and
provided, and against the peace and dignity of the said State; and
the said charge being read to the said Dudley Moore, and the
witnesses for the prosecution—Cyrus Newton Bishop, Edward C.
Knight, James F. Desrivieres, Aaron B. Kemp, Leonard L. Cross,
94
James R. Armington, Charles A. Marvin, George Roberts, Roswell
A. Ellis, George W. Fairchild, John McLoughlin, Henry N.
Whitman, Marcus W. Beardsley, James Saxe, Daniel G. Thomp-
son, and John O’ Leary,—being severally examined in his presence,
the said Dudley Moore is now addressed by me as follows:
‘*‘ Having heard the evidence, do you wish to say anything in
“answer to the charge? You are not obliged to say anything,
“unless you desire to do so; but whatever you say will be taken
‘‘ down in writing, and may be given in evidence against you at
‘your trial.”
Whereupon the said Dudley Moore saith as follows:
Whatever I may have done at St. Albans I did as a Confederate
soldier ; acting under the direction and in obedience to the order
of Lieutenant Young, of the Confederate States army. I ama
native of Kentucky, and owe no allegiance to the United States,
but to the Southern Confederacy. I have violated no laws of
Canada or Great Britain.
And further the Examinant saith not, and hath signed, the fore-
going having been previously read in his presence.
(Signed) DUDLEY MOORKH.
Taken, and acknowledged before )
me, at the Police Office in the
said city of Montreal, the day
and year above mentioned.
(Signed) Cuas. J. Courson, J.8.P.
PROVINCE OF CANADA,
District of Canada, POLICE OFFICE.
CITY OF MONTREAL.
Thomas Bronsdon Collins, late of the town of St. Albans, in the
State of Vermont, one of the United States of America, stands
charged before the undersigned, Charles Joseph Coursol, Esquire,
Judge of the Sessions of the Peace in and for the city of Montreal,
this twelfth day of November, in the year of our Lord one thousand
eight hundred and sixty-four, for that the said Thomas Bronsdon
Collins, and others, to wit: Bennett H. Young, Samuel Eugene
Lackey, Squire Turner Teavis, Alamanda Pope Bruce, Charles
Moore Swager, George Scott, Caleb McDowall Wallace, James
Alexander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dud-
ley Moore, Marcus Spurr, and William H. Hutchinson, on the
nineteenth day of October last past, at the town of St. Albans
aforesaid, in the said State of Vermont, and within the jurisdiction
of the said United States of America, being then and there armed
with certain offensive weapons and instruments, to wit, pistols, com-
monly known and called revolvers, loaded with powder and balls,
well
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and capped, in and upon one Cyrus Newton Bishop feloniously did
make an assault, and him, the said Cyrus Newton Bishop, in bodily
fear and in danger of his life then and there feloniously did put,
and a certain sum of money, to wit, to the amount of seventy
thousand dollars current money of the said United States of
America, and of the value of seventy thousand dollars current
money aforesaid, of the moneys and property of the bank of St.
Albans, a body corporate, constituted and recognized by the laws
of the said State of Vermont, and of the said United States of
America, from the person, custody and possession, and against the
will, of the said Cyrus Newton Bishop, then and there feloniously
and violently did steal, take, and carry away, against the form of
the statutes of the said State of Vermont in such case made and
provided, and against the peace and dignity of the said State; and
the said charge being read to the said ‘Thomas Bronsdon Collins,
and the witnesses for the prosecution,—Cyrus Newton Bishop,
Edward ©. Knight, James F. Desrivieres, Aaron B. Kemp,
Leonard L. Cross, James R. Armington, Charles A. Marvin,
George Roberts, Roswell A. Ellis, George W. Fairchild, John
McLoughlin, Henry N. Whitman, Marcus W. Beardsley, James
Saxe, Daniel G. ‘Thompson, and John O’Leary,—being severally
examined in his presence, the said ‘Thomas Bronsdon Collins is now
addressed by me as follows: “ Having heard the evidence, do you
‘wish to say anything in answer to the charge? You are not
“obliged to say anything, unless you desire to do so; but what-
‘C ever you say will be taken down in writing, and may be viven in
‘‘ evidence against you at your trial.”
Whereupon the said Zhomas Bronsdon Collins saith as follows :
I am a native of Kentucky and a commissioned officer of the
army of the Confederate States at war with the so-called United
States. I served under the command of Gen. John Morgan, and
became separated from it at the batt; of Cynthianna, Kentucky.
Having eluded the Yankees, I jou: Lt. Young afterwards at
Chicago, knowing it to be my duty to my government as well as
to myself never to desert its cause. I ove no allegiance to the
so-called United States, but am a foreigner and public enemy to
the Yankee Government... The Yankees dragged my father from
his peaceful fireside and family circle, and imprisoned him in
Camp Chase, where his sufferings impaired his health and mind,
and my grandfather has been banished from Kentucky by brute
Burbridge. ‘They have stolen negroes and forced them into their
armies, leaving their women and children to starve and die. They
have pillaged and burned private dwellings, banks, villages and
depopulated whole districts, boasting of their inhuman acts as
deeds of heroism and exhibiting their plunder in northern cities as
‘i $x
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96
trophies of Federal victories. I have violated no laws of Canada
or Great Britain. Whatever I may have done at St. Albans, |
did as a Confederate officer acting under Lt. Young. When I
left St. Albans, I came to Canada solely for protection. I entered
a hotel at Stanbridge unarmed and alone, and was arrested and
handcuffed by a Canadian magistrate (Whitman) assisted by Yan-
kees. He had no warrant for my arrest, nor had any sworn com-
plaint been made to him against me. About $9,300 was taken from
me when arrested, part Confederate booty lawfully captured and held
by me as such, and part of my own private funds. I ask the res-
toration of the money taken from me and my discharge as demanded
by the rules of international law. ‘The treaty under which my
extradition is claimed, applies to robbers, murderers, thieves, and
forgers. 1am neither, but a soldier serving my country in a war
commenced and waged against us by a barbarous foe in violation of
their own constitution, in disregard of all the rules of warfare as
interpreted by civilized nations and christian people, and against
Yankees too wise to expose themselves to danger, while they can
buy mercenaries and steal negroes to fight their battles for them,
who whilst prating of neutrality seduce your own people along the
border to violate the proclamation of your august Sovereign by
joining their armies, and leave them when captired by us to lan-
quish as prisoners in a climate unwholesome to thein. If I aided
in the sack of the St. Albans banks, it was because they were
public institutions, and because I knew the pocket-nerve of the
Yankees to be the most sensitive, that they would suffer most by its
being radely touched. I cared nothing for the booty, except to
injure the enemies of my country. Federal soldiers are bought up
at $1000 a head, and the capture of $200,000 is equivalent to the
destruction of 200 of said soldiers. I therefore thought the expe-
dition ‘would pay”. I * guess’ it did in view of the fact also, that
they have wisely sent several thousand soldiers from the ‘bloody
front”? to protect exposed points in the rear. For the part I took
I am ready to abide the consequences, knowing that if Iam ex-
tradited to the Yankee butchers, my government can avenge if not
protect its soldiers.
And further the Examinant saith not, and hath signed, the fore-
going having been previously read in his presence.
(Signed) THOMAS BRONSDON COLLINS.
Taken and acknowledged before
me, at the Police Office in the
said city of Montreal, the day
and year above mentioned.
(Signed ) Cuas. J. CoursoL, J.S.P.
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94
PROVINC.Y OF CAN y,
Pte pudtel of Monadh ‘ POLICE OFFICE.
CITY OF MONTREAL.
James Alexander Doty, late of the town of St. Albans, in the
State of Vermont, one of the United States of America, stands
charged before the undersigned, Charles Joseph Coursol, Enquire,
Judge of the Sessions of the Peace in and for the city of Montreal,
this twelfth day of November, in the year of our Lord one thousand
cight hundred and sixty-four, for that the said James Alexander
Doty and others, to wit: Bennett H. Young, Samuel Eugene
Lackey, Squire Turner Teavis, Alamanda Pope Bruce, Charles
Moore Swager, George Scott, Caleb McDowall Wallace, Joseph
McGrorty, Samuel Simpson Gregg, Dudley Moore, ‘Thomas Brons-
don Collins, Mareus Spurr, and William H. Hutchinson, did, on
the nineteenth day of October last past, at the town of St. Albans
aforesaid, in the said State of Vermont, and within the jurisdiction
of the said United States of America, being then and there armed
with certain offensive weapons and instruments, to wit, pistols com-
monly known and called revolvers. loaded with powder and balls,
and capped, in and upon one Cyrus Newton Bishop feloniously did
make an assault, and him, the said Cyrus Newton Bishop, in bodily
fear and in danger of his life then and there feloniously did put,
and a certain sum of money, to wit, to the amount of seventy thou-
sand dollars current money of the said United States of America,
and of the value of seventy thousand dollars current money afore-
said, of the moneys and property of the bank of St. Albans, a body
corporate, constituted and recognized by the laws of the said State
of Vermont, and of the said United States of America, from the
person, custody and possession, and against the will, of the said
Cyrus Newton Bishop, then and there feloniously and violently did
steal, take, and carry away, against the form of the statutes of the
said State of Vermont in such case made and provided, and against
the peace and dignity of the said State ; and the said charge being
read to the said James Alexander Doty, and the witnesses for the
prosecution,—Cyrus Newton Bishop, Edward C. Knight, James F.
Desrivieres, Aaron B. Kemp Leonard L. Cross, James R. Arming-
ton, Charles A. Marvin, George Roberts, Roswell A. Ellis, George
W. Fairchild, John McLoughlin, Henry N. Whitman, Marcus W.
Beardsley, James Saxe, Daniel G. ‘Thompson, and John O’Leary,
—being severally examined in his presence, the said James Alex-
ander Doty is now addressed by me as follows: ‘‘ Having heard
‘the evidence, do you wish to say anythin in answer to the charge ?
** You are not obliged to say anything, unless you desire to do so ;
‘“‘but whatever you say will be taken down in writing, and may be
‘* given in evidence against you at your trial.” .
G
ba al
98
Whereupon the said James Alexander Doty saith as follows:
I am a Confederate soldier. What I may have done at St. Albans
was by order of Lieutenant Young, an officer in the army of the
Confederate States.
And further the Examinant saith not, and hath signed, the fore-
going having been previously read in his presence.
(Signed) JAMES ALEXANDER DOTY.
Taken and acknowledged before |
me, at the Police Office in the
said city of Montreal, the day
and year above mentioned.
(Signed) Cuas. J. Courson, J. 8. P.
PROVINCE OF CANADA,
District of Montreal, POLICE COURT.
CITY OF MONTREAL.
Samuel S. Gregg, late of the town of St. Albans, in the State
of Vermont, one of the United States of America, stands charged
before the undersigned, Charles Joseph Coursol, Esquire, Judge
of the Sessions of the Peace in and for the city of Montreal,
this twelfth day of November, in the year of our Lord one thou-
sand eight hundred and sixty-four, for that the said Samuel Simp-
son Gregg and others, to wit: Bennett H. Young, Samuel Eugene
Lackey, Squire Turner Teavis, Alamanda Pope Bruce, Charles
Moore Swager, George Scott, Caleb McDowall Wallace, James
Alexander Doty, Joseph McGrorty, Dudley Moore, Thomas Brons-
don Collins, Marcus Spurr, and William H. Hutchinson, on the
nineteenth day of October last past, at the town of St. Albans,
in the State of Vermont, and within the jurisdiction of the said
United States of America, being then and there armed with certain
offensive weapons and instruments, to wit: pistols commonly known
and called revolvers, loaded with powder and balls, and capped,
in and upon one Cyrus Newton Bishop feloniously did make an
assault, and him the said Cyrus Newton Bishop in bodily fear and
in danger of his life then and there feloniously did put, and a certain
sum of money, to wit: to the amount of seventy thousand dollars
current money of the said United States of America, and of the
value of seventy thousand dollars current money aforesaid, of the
moneys and property of the bank of St. Albans, a body corporate,
constituted and recognized by the laws of the said State of Ver-
mont, and the said United States of America, from the person,
custody, and possession, and against the will, of the said Cyrus
Newton Bishop, then and there feloniously and violently did steal,
take, and carry away, against the form of the statutes of the said
State of Vermont, in such case made and provided, and against the
Ls ae Sa eee Ce ae
99
peace and dignity of the said State; and the said charge being
ans read to the said Samuel Simpson Gregg, and the witnesses for the
the prosecution,—Cyrus Newton Bishop, Edward C. Knight, James
F. Desrivieres, Aaron B. Kemp, Leonard L. Cross, James R.
‘ore- Armington, Charles A. Marvin, George Roberts, Roswell A. Ellis,
George W. Fairchild, John McLoughlin, Henry N. Whitman,
@ Marcus W. Beardsley, James Saxe, Daniel G. Thompson, and
John O’Leary,—being severally examined ‘1 his presence, the
said Samuel Simpson Gregg is now addressed by me as follows:
‘‘ Having heard the evidence, do you wish to say anything in
‘answer to the charge? You are not obliged to say anything,
‘unless you desire to do so; but whatever you say will be taken
‘down in writing, and may be given in evidence against you at
‘¢ your trial.”
Whereupon the said Samuel Simpson Gregg saith as follows :
I was born and reared in the State of Kentucky. I am a Con.
federate soldier. My term of service is not yet expired. I owe no
allegiance to the United States Government. Whatever I may
have done in the month of October last, in St. Albans, in a military
point of view I did as a Confederate soldier, acting under orders of
Lieut. B. H. Young, Confederate.
And further the Examinant saith not, and hath signed, the fore-
going having been previously read in his presence.
(Signed ) SAMUEL 8S. GREGG.
Taken and acknowledged before
me, at the Police Office in the
said city of Montreal, the day,
and year above mentioned.
(Signed) Cus. J. Courson, J.S.P.
vitro Montreal, POLICE OFFICE.
CITY OF MONTREAL.
Squire Turner Teavis, late of the town of St. Albans, in the
State of Vermont, one of the United States of America, stands
charged before the undersigned, Charles Joseph Coursol, Esquire,
Judge of the Sessions of the Peace in and for the city of Montreal,
this twelfth day of November, in the year of our Lord one thou-
sand eight hundred and sixty-four, for that the said Squire Turner
Teavis and others, to wit: Bennett H. Young, Samuel Eugene
Lackey, Alamanda Pope Bruce, Charles Moore Swager, George
Scott, Caleb McDowall Wallace, James Alexander Doty, Joseph
McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas Brons-
don Collins, Marcus Spurr, and William H. Hutchinson, on the
nineteenth day of October last past, at the town of St. Albans
aforesaid, in the said State of Vermont, and within the jurisdiction
Sinn Sarees at
Wifes
100
of the said United States of America, being then and there armed
with certain offensive weapons and instruments, to wit, pistols, com-
monly known and called revolvers, loaded with powder and balls,
and capped, in and upon one Cyrus Newton Bishop feloniously did
make an assault, and him, the said Cyrus Newton Bishop, in bodily
fear and in danger of his life then and there feloniously did put,
and a certain sum of money, to wit, to the amount of seventy
thousand dollars, current money of the said United States of
America, and of the value of seventy thousand dollars current
money aforesaid, of the moneys and property of the bank of St.
Albans, a body corporate, constituted and recognized by the laws
of the said State of Vermont, and of the said United States of
America, from the person, custody and possession, and against the
will of the said Cyrus Newton Bishop, then and there feloniously
and violently did steal, take, and carry away, against the form of
the statutes of the said State of Vermont in such case made and
provided, and against the peace and dignity of the said State ; and
the said charge being read to the said Squire Turner Teavis, and
the witnesses for the prosecution,—Cyrus Newton Bishop, Edward
C. Knight, James F. Desriviéres, Aaron B. Kemp, Leonard L.
Cross, James R. Armington, Charles A. Marvin, George Roberts,
Roswell A. Ellis, George W. Fairchild, John McLoughlin, Henry
N. Whitman, Marcus W. Beardsley, James Saxe, Daniel G. Thomp-
son, and John O’Leary,—being severally examined in his presence,
the said Squire Turner Teavis is now addressed by me as follows:
‘‘ Having heard the evidence, do you wish to say anything in answer
‘to the charge? You are not obliged to say anything, unless you
‘‘ desire to do so; but whatever you say will be taken down in
‘+ writing, and may be given in evidence against you at your trial.”
Whereupon the said Squire Turner Teavis saith as follows :
I am a native of Kentucky, a soldier of the Confederate States
army. I joined the said army on the 3rd of September 1862. I owe
my allegiance to the Confederate Government, and not to the infa-
mous and tyrannical Yankee Government. Whatever I may have
done at St. Albans, I did as a soldier of the Confederate army ;
not on my own responsibility, but in obedience to the orders of
Lieut. Young of said army. I have violated no law of Great
Britain or Canada.
And further the Examinant saith not, and hath signed, the fore-
going having been previously read in his presence.
(Signed) SQUIRE TURNER TEAVIS.
Taken and acknowledged before )
me, at the Police Office in the |
said city of Montreal, the day /
and year above mentioned.
(Signed) Cuas. J. Coursot, J.8.P.
101
Mr. Devlin said it was now the time when the counsel for the
prisoners should enter upon their defence. One of the cases against
the prisoners had been closed, and the Court should now call upon
them to establish their defence. He hoped the Court would call
upon the counsel for the accused, to proceed at once ; the counsel
for the prosecution being prepared, when the gentlemen on the
other side had closed their defence, to argue this case, and obtain
the judgment of the Court before being called upon to go on now
with other cases against the prisoners.
Mr. Kerr.—The learned counsel certainly made a very extraor-
dinary demand, and one which the Court would assuredly look upon
with no favor. What was to be understood by this application ?
What case did his learned friend allude to when he asked that the
counsel for the prisoners should now be called upon to make their
defence? Was it the case of the First National bank, or the St.
Albans bank ? When the facts connected with the First National
bank were under consideration, it was distinctly understood by the
counsel for the defence, that all the cases were to be proceeded
with, and that after they were closed, the accused should be called
upon to make their defence. In proof of this understanding, the
cases of the two banks had been proceeded with simultaneously.
But although this was the case, the counsel on the other side, in
order to put themselves in possession of ‘the prisoners’ means of
defence, and discover their weak points, and fortify their position
that those means could not be in any subsequent case, now called
upon the Court to compel the accused to make their defence.
The distinct understanding between the prosecution and the
defence was, that all the cases were to be gone through with, as he
had already stated.- His Honor the Judge was a witness of the
correctness of the assertion; and the irrefutable evidence of the
fact was, that the two cases of the two different banks at St.
Albans were proceeded with at the same time. The counsel for
the defence had made no objection when the second case was
called upon, although at the time the first was not half finished.
And now because one of these cases chanced to be finished, the
other side called this sice to enter upon the defence. It would be
useless for the counsel on behalf of the accused, to encumber them-
selves and the Court, and to fritter away time with six different
defences, especially when they intended to limit themselves to one
defence on the merits, to one defence in all the cases. The counsel
for the accused would bind themselves to close their defence in a
reasonable time. On Saturday evening the counsel on both sides
had agreed upon a delay, and had approximately settled the con-
ditions of it. In fact the counsel for the accused were under the
impression the agreement was closed, and would be carried out ;
: A mia BM ae Sree eaert z
SB IP il Sac MO SIR Se Rs Seca ay te eT iene oF Fame
Sa SS Se ;
as
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102
and he was exceedingly surprised this morning to find that they
were to be taken by the throat and required to proceed with the
defence. He did not think, after the facilities which the counsel
on this side had afforded to gentlemen on the other side to go on
with their cases, that the understanding with which the cases com-
menced should be violated, even if the agreement of Saturday
should be broken up. In consequence of this understanding, Mr.
Laflamme, one of his confréres, had left town, and he did not think
it right or fair, that it should thus be set aside by the counsel for
the prosecution.
Mr. Ritchie, on the part of the prosecution, would say, that he
had been present several days and heard no word of such agrec-
ment. It was certainly not known between the gentlemen repre-
senting the United States, and the gentlemen for the defence. If
there was any such agreement it must be between the gentlemen
representing the Canadian Government and those for the defence.
Mr. Devlin had been in the case since the beginning and con-
sidered he represented the United States generally as Mr. Ritchic
did. He (Mr. D.) could therefore state that he was utterly op-
posed to any attempts made to obtain delay. The prosecution now
declared the case of the St. Albans bank closed; but they did not
wish to press the gentlemen on the opposite side as to time. The
prosecution wished those gentlemen to name the day on which
they would go on with the defence. As to the understanding of
Saturday night, if the defence had been led astray, and if on that
account, any of their witnesses were absent, they would be entitled
to reasonable delay in order to get the witnesses back.
Mr. Johnson, Q. C., said that nothing would give him greater
pleasure than that there should be an understanding, so that delay
would be avoided, and the case facilitated. But the idea of the
Crown of England making an agreement with criminals, was a thing
totally unheard of. He could not enter into any agreement with
the prisoners for delay; and the reason was that such an agree-
inent would not be binding on the prisoners.
Hon. Mr. Abbott, Q. C.—What has been stated by my learned
friend, Mr. Kerr, is perfectly correct. When the examination of
witnesses commenced, there was an understanding to the effect
that the examinations in all the charges should be taken before we
entered upon the defence. That was the understanding on all
hands; and my learned friends on the other side had at that time
no other course in contemplation. It was suggested to your
Honor—or rather your Honor originated the idea—that it was
better that the portion of the evidence of each witness applicable
to any particular charge, should be taken by itself, apart from
that having reference to other charges. For instance, if Mr.
t
0 ARR ene a ee
oo 4 ies steteraae nS Rapa ese kids
103
Sowles could testify as to the facts in the case of the First National
bank, that evidence should go into one deposition, while any evi-
dence he could give in the case of the St. Albans bank should go
into another. I think this was an arrangement well calculated
to prevent confusion, and, so far, it has done so. And to show
that this arrangement was comprehended by my learned friends
opposite, they proceeded promiscuously with the examinations of
witnesses in the cases of both the St. Albans banks ; some of those
witnesses giving evidence applicable to both charges, the deposi-
tions being, however, kept separate. There has been a great deal
of good effected in thus keeping the evidence in each charge so
well defined and distinct.
There is no question here of an agreement between the Crown
and criminals, for the Crown has nothing to do with the case what-
ever, and the prisoners are not criminals under our laws—even if’
they are guilty as charged. The question was merely one of re-
gularity of procedure, which it is your Honor’s province to decide
upon; and all parties, with your Ilonor’s sanction, having pro-
ceeded with these cases in a well-defined and convenient mode, it
is submitted that that mode should not now be departed from.
And there is no reason for departing from it, but the contrary.
The accused are charged with seven offences; but can they be
seven times extradited? The object of these charges is to get the
accused across the frontier ; and if one of them is proved, that one
would warrant their extradition, while proof of them all would do
no more. To all these charges we have only one defence to make ;
and, in fact, the evidence thus far taken shows that all the offences
charged are acts committed in an enterprise—of which each act is
only an incident. I don’t understand whether this prosecution is
carried on by the Crown or the United States Government ; but
whichever of these two authorities it is, if the proposition of the
prosecution be adopted to try each case separately, and if they fail
to make out the present charge, of course evidence will have to
be taken on the next charge, and we will also have to bring up our
evidence, and to go over the same ground again, and so on till all
the charges are disposed of—or until one is established. At such
a rate of proceeding, these men will be kept in gaol for six months,
whether innocent or not, which is probably the intention.
The distinction between this and ordinary criminal investigations
is an obvious one. If these men were under charges of seven
crimes committed in Canada, they would be liable to seven punish-
ments if they were found guilty. That would be a good reason for
trying them separately ; but there is no good reason for doing so
when a commitment upon them all would entail no greater punish-
ment as far as this tribunal is concerned, than if they were com-
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104
mitted upon one. All confusion may be avoided by taking the
charges together, and then we will submit our defence, which rests
on one ground only. We have made no unnecessary cross-exami-
nation; we have thrown no obstacles in the way; and we now
desire the case to proceed. Let the whole of the charges be
brought up, and then it will be found we are ready with our de-
fence.
Hon. Mr. Rose, Q.C., contended that the defence’ should now
be called upon ; and by this course being adopted, the case would
not only be facilitated, but the interests of justice subserved. If
the prisoners are committed on this charge, no further enquiry is
necessary. If they are discharged on the merits of it, it would be
useless to proceed on any other.
Mr. Abbott.—Then if they are discharged on this charge, will
you abandon the others ?
Mr. Devlin.—We will answer that when the time comes.
At the opening of the Court at two o’clock,
Judge Coursol said: Now that the voluntary examinations have
been closed, I desire to state that I in no way recognize this pro-
ceeding as regular or legal, and do not wish that it should be con-
sidered as a precedent for the other cases. -‘The voluntary examina-
tions were taken because Mr. Johnson, as representing the Crown,
in this case requested it; but I entertain serious doubts as to the
necessity of it, and would, therefore, wish it to be understood that I
give no legal opinion as to whether the voluntary examination of the
accused, under the provisions of the Statute to give effect to
the Extradition Treaty, is a proper proceeding or not. Then,
coming to the point submitted to me before the recess, I have arrived
at the conclusion that it is better to allow the accused a reasonable
delay for their defence: but, before according that delay, I mus}
be satisfied that a sufficient reason exists forgit, and I therefore call
upon the counsel for the defence to state whether they have any
preliminary objections to urge as to the proceedings in the St.
Albans bank case, as the nature of their objections if there are any
may very much affect my course of procedure in granting the
delay asked for on the part of the defence. The disposal of these
preliminary objections seems to me necessary, with the view to save
time, and to dispose of those matters as speedily as possible. Those
objections may be of such anature as to dispense with the necessity
of any defence whatever, and upon this point I must be satisfied
before I grant a delay for a defence upon the merits. It is neces-
sary, in the interests of the public service, for the peace and tran-
quillity of the country, that these cases should be proceeded with as
speedily as possible, having, of course, due regard to the interests
SNR IS ti
105
of the accused, and I wlll do all in my power to see that no un-
necessary delay shall arise. At the same time, I shall expect the
prosecution, whether a delay be granted or not, to proceed with the
other cases, or declare they withdraw them ; if the counsel for the
defence had any preli: xinary objections to the proceedings in the
St. Albans bank case I am prepared to hear them.
Mr. Abbott said that such a question took them very much by
surprise, and that he had not yet scrutinised the proceedings for
the purpose of ascertaining whether a preliminary objection was
available ; but that he would be prepared to answer the question if
a little time were given.
Judge Coursol said that the delay to be given to the prisoners
for preparing their defence would depend greatly upon the nature
of the preliminary objections made.
Mr. Abbott said that surely the fact that the prisoners considered.
the proceedings informal, and objected to them, could not possibly
affect the opinion of the Judge as to the length of time that should
reasonably be allowed them for their defence.
Judge Coursol said that it might very materially affect that
question.
Mr. Kerr said that the counsel for the prisoners would offer no
preliminary objection which they did not feel their duty to their
clients compelled them to do; and he trusted that the performance
of that duty would not expose their clients to have the time short-
ened, which would otherwise be considered a reasonable time.
Judge Coursol said he should decide, after hearing the objection.
what delay would be reasonable.
Mr. Devlin desired to know what the objections were ?
Mr. Abbott said that at this moment he could not say whether
any objection would be made or not.
Mr. Rose said he thought the objections should be previously sig-
nified to the parties in writing.
Mr. Johnson said he had supervised the proceedings on the part
of the Crown, and that he was prepared to sustain them without
any previous notice.
Judge Coursol said that to require previous notice was very
unusual.
Tuesday, Nov. 15.
At the opening of the Court this morning,
Mr. Kerr rose and said he had observed in the warrant that
certain property or effects stated to be stolen, were alleged to be
stolen from the bank of St. Albans. This allegation was an impor-
tant one, and one without which it would have been impossible to
arrest the prisoners. But in this warrant, issued under the provi-
106
sions of the Treaty, and the statute to give effect to the Treaty,
the same particularity was required as in an indictment. The war-
rant should show the offence committed by the prisoners, in order
that they should be legally apprehended. It was necessary to show
who was the person robbed, and whose were the effects. The
learned gentleman having cited authority, went on to say, the
warrant disclosed the special fact that the money belonged to the
bank of St. Albans. Now the question to be decided was—had
any evidence been brought forward to show that there was such an
institution in existence in the State of Vermont as the bank just
named? He affirmed there was no such evidence. What had been
shown was, that an act or incorporation had been given to the
** President, Directors and Company ” of a certain bank. There
was nothing to substantiate the fact that the bank of St. Albans
was the institution meant in the incorporation of a certain “ Presi-
dent, Directors, and Company.” It was hardly necessary to cite
authorities to prove that no corporate body could be named in an
indictment, except in the proper terms; in fact this point was
settl 1 two years ago, at a term of the Court of Queen’s Bench
held in this city, and in a case in which he and his learned friend
Mr. Devlin were engaged. It was only by its corporate name that
the existence of any institution could be recognized. In this case
the corporate name had not been given; therefore the Court did
not know there was any such institution as the bank of St. Albans.
Mr. Devlin replied that if this argument had been applied to a
bill of indictment, it might, perhaps, have some weight ; but applied
in a preliminary investigation of this nature, it could have no effect.
There was a vast difference between a simple investigation of
charges and a bill of indictment. ‘The prisoners were not before
the Court on a bill of indictment.
Judge Coursol said that the remarks of Mr. Kerr might hold
good if the prisoners were before the Court on an indictment for an
offence. But they were not in that position, and this was simply a
preliminary examination. If errors had been made, they had been
rectified by the evidence, and the Court could still further rectify
any errors in the final committment, if such a commitment had to
be made out.
Hon. Mr. Abbott made application for a delay of thirty days
to enable the prisoners to obtain the evidence necessary for the
<lefence ; and in support of the application, read the following affi-
davit made by Young, Collins, and Wallace, on behalf of themselves
and of the:r fellow prisoners.
RDM
LNT IM ods
107
PROVINCE OF CANADA,
District of Montreal, i POLICE COURT.
LOWER CANADA, TO WIT.
Bennet H{[. Young, Thomas Bronsdon Collins, and Caleb
McDowall Wallace, being themselves prisoners, and on behalf of
their fellow prisoners in this matter, being severally duly sworn, do
depose and say: That deponents and the other prisoners charged
with the offence now under investigation require certain testimony
which is necessary and material to their defence, and which they
are unable to procure in Montreal, or even in Canada. That they
desire to prove and can prove, if time be allowed them to procure the
requisite evidence, that every one of the prisoners now in custody
is an officer or soldier of the army of the Confederate States of
America, duly enlisted, enrolled or commissioned respectively, and
their term of service has not expired. That they also desire to
prove and can prove, if time be allowed them for that purpose, that
this deponent, Bennet H. Young, is, and was on the nineteenth
day of October last, an officer of the army of the Confederate
States of America, holding the commission and rank of first lieu-
tenant in that army, and that they, the rest of these deponents, and
of the prisoners, were duly engaged and placed under his command
for special service, under the authority to him given by the
government of the said Confederate States, through the Secrc-
tary for the War Department thereof. That they also desire
to prove and can prove, if time be allowed them for that pur-
pose, that every act and thing which they or any of them
did on the 19th of October last, at St. Albans, in the State of
Vermont, was so done under and in pursuance of the orders of the
said Lieutenant Young, given by him by virtue of his instructions
from the said government and of his authority in the premises.
That all and every of the said acts were duly authorized and
directed by the military authorities of the said Confederate States
acting under the Government thereof, and were acts of warfare
committed and performed in conformity with the rules and precc-
dents by which civilized warfare is conducted ; and that they were
more than justified by the acts of generals and armies in the ser-
vice and under the orders of the Federal Government of the
United States, and as retaliation for such acts. That the said
acts of these deponents and of the other prisoners have, as depo-
nents are informed and believe, been approved of by the said
Government of the said Confederate States, as being done in con-
formity with instructions so received from the said Government.
That deponents and the other prisoners have applied to the Hon.
Mr. Edmonds now here representing the United States Govern-
ment for a safe conduct for a messenger to proceed to Richmond
108
in the said Confederate States for the documentary and other evi-
dence required to establish the .foregoing facts, but that the said
application has not been granted. That if such safe conduct
were granted, the said evidence could he obtained in eight
or ten days, pnt as the same has been refused, a period of at
least. thirty days will be required to enable these deponents and
the other prisoners to obtain such evidence by other means, andl
that a less period of time than the said period of thirty days will
be insufficient to enable them to obtain the same. And deponents
further say that if they are not accorded the said delay to enable
them to procure the evidence necessary for their defence, such evi-
dence as they will be enabled to offer will be necessarily less perfect
than if a just and humane indulgence were accorded to them, such
as they now declare to be necessary ; and that if by reason of the
want of the requisite time to obtain such evidence, their defence
should be imperfectly established, and they should thereupon be
delivered to the emissaries of the Federal Government, such a pro-
ceeding will be handing them over to certain death at the hands of
the executioner, on the pretence that they have committed crimes
which they never either committed or contemplated, and which they
look upon with abhorrence; but in reality because they are the
enemies of the Northern Government, engaged in warfare against
them, and because that government desires to wreak vengeance
upon them, which is neither justifiable by the laws of war nor any
civilized country; and that such a death would be a judicial mur-
der, the guilt of which would le upon those by whom deponents
would be deprived of the power of adducing evidence in thei
defence ; and deponents have signed.
(Signed) BENNETT H. YOUNG,
T. B. COLLINS,
C. M. WALLACE.
Sworn before me, at Montreal, this
15ih day of November, 1864.
(Signed) Cuas. J. Courson, J.8.P.
Mr. Abbott submitted to his Honor that the prisoners should be
allowed the thirty days they prayed for.
Mr. Johnson, Q.C., on the part of the Crown, took this affidavit
to mean that the prisoners desired thirty days’ delay to procure
evidence. He could not conceal from himself that this was the
first time any such question arose since the passing of the Treaty.
It was quite true that in England and here, in the case of crime
committed within our own jurisdiction, a magistrate might receive
exculpatory evidence, and return it with the other evidence. But
did this course apply to crimes under the treaty, committed in
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109
foreign jurisdiction Not at all. What would be the effect of the
Court granting this application? Why, it would be to oust the
courts of the United States of their jurisdiction. If thirty days
were granted, then these gentlemen might, at the end of that time,
ask for a hundred days,—the one request would be as reasonable
as the other. He was not prepared to say these gentlemen had
power, in the face of the United States authorities, to penetrate to
Richmond, and obtain documents, under thirty days; but at all
events, the demand was one which his learned friends had no right
tomake. ‘To grant such demand would be to deprive the United
States courts of their jurisdiction.
Mr. Kerr said he was happy to see that the Crown, or rather
the counsel for the Crown, had at last got rid of the haze which,
since the commencement of these proceedings, had enveloped the
position occupied by him, and had now come out in his true colors,
when he said on the part of the Crown of Great Britain that he
protested against thirty days being allowed the prisoners to com-
municate with the capital of the country to which they professed to
belong. The Government of Great Britain or that of Canada had
no right whatever to interfere in this case ; and the conduct of the
Crown here in the management of this prosecution had been
marked from beginning to end by an exhibition of the most dis-
graceful despotism on the part of its ministers and of those who
attended to its interests in this Province, in support of which alle-
gation he referred to the experience of the learned Judge of
Sessions himself. He maintained that the Government of Cana-
da,—he would not say that the Government of Great Britain was
responsible, as it knew nothing of the proceedings adopted in this
case,—in the course it had taken in the present enquiry, had shown
an ignorance of constitutional law which would draw upon it the
reprobation of the law officers of Great Britain when the circum-
stances of this case came to the ears of the people of that country.
He believed it would never be said in Great Britain, that that
country which had boasted of being an asylum of political refu-
gees from time immemorial—which had received and protected
the refugees from France at and since the time of the First
Revolution—which had even shielded ‘its present Emperor from
the hands of his enemies—would authorise her officers to appear
in any case of extradition in order to deliver up men whose
only offence was their being political refugees, to use their
own words ‘thrown by the fortunes of war on her soil.” The
Crown here had forgotten its duty in employing its officers to pro-
secute this case, for it was patent that from the first they had
appeared against the prisoners conjointly with the counsel for the
United States. In ordinary cases the course was that, after the
110
magistrate or justice had completed the enquiry and made his
report, the law officers of the Crown were called upon for their
opinion thereon. But we had evidence throughout of a prejudging
of this case, having had subordinates of the Crown coming here to
conduct the prosecution ; and without any knowledge of the facts
of the case, the intention of the government, we believe, has been
to extradite the prisoners if by any means it possibly could be
effected. The objections against the solicited delay would have
come with some grace from the counsel for the United States, but
for the counsel for the Crown to have opposed it, to have virtually
contended that it was not proper or desirable to have all the facts
of the case elicited—thus endeavoring to suppress the real facts
and circumstances at issue-—was something truly astonishing, and
which could never have been expected in a country boasting of any
Englishman, Irishman, or Scotchman at its head. He (Mr. Kerr)
would now address himself to the argument of the counsel for the
Crown, who had said he did not know whether we were entitled to
produce evidence or not in this case.
Mr. Johnson was understood to contend that they were entitled
to produce exculpatory evidence if at hand; but that his Honor
was not obliged to wait any length of time asked by the counsel for
the defence.
Mr. Kerr maintained it was not a matter for the discretion of the
Justice, the allowance of the production of evidence on the part of
the defence ; but a matter of strict right. It was clearly laid down
by the present chief justice of the Court of Common Pleas, as well
as by one of the justices of Her Majesty’s Court of Queen’s Bench
in London, that a prisoner has a right to bring forward evidence in
his own defence. In order to support his position, he would refer to
Saunders’ Practice of Magistrates’ Courts, page 154, on the subject
of * Calling witnesses in behalf of the Prisoner.’’ It is there said
that ‘‘it may be that the prisoner is in a position to rebut by evi-
dence the case established against him, and that he is desirous
of calling witnesses. Formerly it was doubted whether or not it
was the duty of the magistrates to hear this evidence, but the
received opinion at the present day is, that it zs their duty.”
In the absence of any judicial decision upon the subject it may be
convenient to refer to the Opinion of four very eminent and learned
personages, namely, the late Attorney General (now Chief Justice
of the Common Pleas), Mr. Crompton (now Mr. Justice Cromp-
ton), and Messrs. Ellis and Hall, given upon a case submitted to
them by the Magistrates of Leeds. That case raised inter alia,
the following questions :
First—Is it incumbent upon the magistrate before whom an
indictable offence is in course of preliminary investigation, to
le his
their
dging
pre to
facts
been
ld be
have
, but
ually
facts
facts
and
“any
err)
* the
id to
itled
nor
| for
the
t of
wn
ell
ch
in
111
hear and examine witnesses adduced by the prisoner in his answer:
or defence to the charge against him; or has the magistrate
any discretion to receive or reject such evidence, and if any
discretion, of what kind or nature is it, and how ought it to
be exercised by him?’ This was the answer. “ First—The
question firstly submitted to us is certainly not free from diffi-
culty, but considering that the practice under the old statute
was to examine a prisoner’s witnesses, and that the language of
the 11th and 12th Vic., cap. 42, s. 17, admits of such a construc-
tion, and that the interests of justice demand it, we think that it is
incumbent on magistrates to hear and examine such of the witnesses
offered by the prisoner as o~pear (in the language of the statute)
to know the facts and circumstances of the case.’ At page 157
it would be seen that in this view of the matter Chief Baron Pol-
lock exactly coincided. With respect to showing that the magis-
trate, to a certain extent, acted as a judge, which had been denied
by the learned gentleman on the other side, he (Mr. Kerr) would
refer to another passage in “ Saunders.”’ But first it would be
observed that counsel on the other side held that the magis-
trate was to satisfy himself that a crime had been committed, in
disposing of a prisoner, but not to satisfy himself that a crime had
not been committed. It was thus laid down in the authority just
mentioned : “ If, however, from the slender nature of the evidence,
the unworthiness of the witnesses or the conclusive proof of inno-
cence produced on the part of the prisoner, they (magistrates)
feel that the case is not sustained, and that if they committed for
trial, a verdict of acquittal must be the necessary consequence, they
will at once discharge the accused, and so put an end to the enquiry
as far as they are themselves concerned.”’ Then, were the defence
to be deprived in this case—taking it for granted there were cer-
tain portions of international law applicable—of the privilege of
bringing forward the witnesses considered necessary for the defence ?
Could it be pretended that, when they said it was utterly impos-
sible to obtain, for the present, testimony from Richmond, owing to
the difficulties which beset communication with that city—when
there were refused a safe conduct by the United States—when
these facts were established on oath, that in a British Court of justice
a prisoner so situated was not to have the opportunity, the time to
bring up the testimony necessary for his defence, but that at the
demand of a foreign Power, or through the cowardice of our nation,
fearful of the invasion, threatened by the New York papers, the
prisoners before us were to be deprived of that justice which
hitherto it had been the boast of every Court in Great Britain
and Ireland was extended to the humblest as well as the noblest
subject in the land? Arguments such as those advanced by the
SS
a a a re
=
woe
em
_
—
a a
112
counsel for the Crown showed that they were afraid to encounter
the evidence the defence would bring forward of the character in
which the prisoners figured in their raid on St. Albans. As Mr.
Laflamme had something to remark on this point, he would say no
more at present.
Mr. Laflamme said that the proposition on the part of the Crown
officers was that the granting of the delay asked for would de-
prive the tribunals of the United States of the exercise of their
jurisdiction upon the offence alleged against the prisoners. Assur-
edly a proposition of this description was rather a strange one
to come from the Crown officers, as it would amount to an indica-
tion of a sort of conspiracy entered into between them and the
Federal authorities, for the purpose of kidnapping the prisoners
from British territory, where they were entitled to their freedom,
and to surrender them to their enemies who were awaiting their
rendition, not to do justice to, but to wreak vengeance upon them.
This would be the result of the proceedings, if the prisoners were
denied the right of exculpating themselves. It had been said also
that when prisoners had exculpatory evidence at hand, they might
be allowed the privilege of bringing it up; but when they had not
such ready, they should not be allowed the privilege of adducing it.
Upon what authority could such a principle rest? He had several
times heard very strange law, but this was the strangest he ever
listened to. The exceptional character of the prisoners, and the
exceptional position in which they stood, far from limiting the pri-
vileges ordinarily allowed the accused, should rather operate to
their greater liberty and advantage ; because were it not for the
treaty which gave His Honor jurisdiction in such matters, even
suppose the prisoners had committed crimes in the States, they
could not have been made amenable in Canada. The acts which
they committed out of the limits of this jurisdiction were no crimes
cognizable by His Honor or any Courts of this Province, and con-
sequently every benefit of law extended to the accused must be
accorded the present prisoners, who could not be considered as cri-
minals in the eyes of the committing magistrate. ‘They were only
detained for the execution of the international treaty between
Canada and the United States, and could not be detained or regarded
as criminals till such evidence of criminality be adduced as would
justify His Honor in committing for extradition. The prisoners
had committed no offence according to our law, and more than the
ordinary benefits of that law should be accorded them. Assuredly,
in a case of this description, it would be sufficient to refer to the
Statute, independent of the general principle of law, to ‘establish
that evidence according to the rules of our own law was required to
show that an offence had been committed. There might be crimin-
DSR AREER AERC aera Ne we
unter
ter in
3 Mr.
vy No
rowh
1 de-
their
sgur-
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ight
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EI Ra ae stellate ass
115
ality on their part, but they must necessarily be allowed every
opportunity to show there was no criminality. If a party was
accused of jourder and came before the Court and showed the mau
sud to be murdered was alive or killed by accident, assuredly there
could be no erimimaity chargeable, and if a man accused of theft
could prove t property supposed to be stolen belonged to him
there certainly would be no criminality in such a ease. Therefore
if a magistrate were bound to commit aman only in case of sufficient
evidence of the offence being adduced, the prisoner must be allowed
the privilege of proving that no offence had been committed. The
statute applicable in this case bound [fis Honor to examine on oath
any person, touching the truth of the offence charged ayainst the
party whose extradition was demanded, and to exact before com-
mittal such evidence of guilt as would justify a magistrate, if the
crime were committed in this province, in sending the party to jail
for trial. Therefore, ifevidence must be brought touching the truth
of the charge, the accused might produce testimony in answer to
prove it groundless, and they could not be deprived of this right.
In addition to these reasons in favor of the petition, it had been an
invariable practice of His Honor to allow the accused to bring
up exculpatory evidence, andit would be impossible to deviate
in this case from that course. The Crown had also asserted that
the evidence which could be allowed was such as would amount
toa denegation of the act itself. It was impossible for the prose-
cution to show that a denial of the crime could not be made as well by
adducing evidence that destroyed the essence of criminality as if
the defence denied the fact itself. The main question and the con-
dition of the exercise of the magistrate’s jurisdiction in this matter
was the existence of a crime against the municipal laws of the United
States such as defined by the treaty. If they established that this
was an act committed by the order of a government, by one of two
‘belligerents, recognized as such by Britain, be it a case of plunder
or a mere case of devastation, involving the loss of life, there was no
case of murder or robbery. Be this a most extraordinary deviation
from the ordinary rules of common warfare, be it inhuman, and
against the principles even of civilized warfare, independent of any
other question than its being an act committed by regular, com-
missioned troops, under a special order from a belligerent Power, in
such a case there was no more room for an application of the treaty,
than in the case of an appeal for the extradition of any of the South-
ern gentlemen in this colony on a charge of annoying the Govern-
ment of the United States. If a party could show that a hostile act
was committed according to instructipns by a regularly commis-
sioned soldier of a belligerent government, he proved it was not an
act of murder or robbery, but a political act for which there might
Il
na
See gee
Spgs ge ee
So i aanen : ‘ = ae
= ‘ 7
114
be a remedy, but not under the present treaty law. Evidence might
be produced in behalf of the prisoners every whit as beneficial as
proof in a case of murder that the supposed murdered man was
alive. He could see no difference between exculpatory testimony
of one kind or other. If the prisoners were entitled to show any
evidence whatever in exculpation, time must be allowed them ;
because if time were not allowed, it would be as well to deny them
justice absolutely, and deliver them up to the American authorities
who were here, assisted by all the powers in this country, exer-
cising a most unjust and unlawful influence not only upon public
opinion, but upon every officer in the public service, to make them
act not as judges, but as police officers, in order to obtain by every
possible means the surrender of the accused to the United States
authorities. If the Crown wished to disclaim any unjust action on its
part in this prosecution, and show it was actuated by fair motives
and wished to see the treaty well carried out, they ought to give
full scope to the defence, and not begrudge a delay of thirty days
for the procuring of exculpatory testimony. The Crown had resorted
to various methods in the conducting of the case, such as bringing
forward only one charge at a time, in order to experiment, to feel
their way, to increase the chances of rendition on some of them,
with the object of securing that result. But there were two parties
equally entitled to justice in this case—one the Confederate and
the other the Federal States. The former had come forward claim-
ing the exercise of that British impartiality and the benefit of that
British liberty which Britain never denied the refugee once he
entered British territory. And when these prisoners had reached
the shelter of the British flag, and were prepared to show that they
had committed nought but an act of justifiable warfare, it was
strange to sce the Government act as it had done, trying all in its
power to curtail the efforts of the defence to establish the innocence
of the accused. He (Mr. L.) was sure His Honor, considering
the risk and diificulty experienced in reaching the Confederate
capital, would not refuse such a reasonable demand as thirty days’
delay, which would enable the defence to show beyond a doubt that
the acts charged against the prisoners in reality were neither robbery
nor murder, Hut acts of common and justifiable warfare.
Mr. Devlin desired to say that the gentlemen employed as
counsel for the United States concurred in the opposition made by
Mr. Johnson to the application for delay. The prisoners were
arrested on the 19th of October; but had they shown that from
that time up till now they had adopted any means to secure
the attendance of witnesses? Hon. Mr. Edmonds, who specially
represented the U. 8. government, had declared that his govern-
ment had desired every reasonable means of defence should be
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115,
allowed the prisoners before final Judgment was rendered, But if
thirty days more were allowed, it would be simply a denial of
justice. a sy
Hon. Mr. Abbott.—In our affidavit this morning it was not neces-
sary to give the details of what we had been doing to procure
evidence. We are not called upon to state such facts, and by so
doing put the gentlemen on the other side, and the Federal govern-
ment on our track. My learned friend Mr. Devlin, treats this
case as if it were one of petty larceny committed within the juris-
diction of the justice, and appears to think that w should be bound
by the rules that govern such cases. ‘This, on the contrary, 1s a
matter of unusual importanec, involving grave questions of inter-
national law, of national honor and duty, and affecting also the
lives of fourteen men. If these questions are to receive the con-
sideration they deserve, the facts must be fully ascertained, and
the nature of the case renders it evident that full information upon
them can only be obtained in Richmond. And as by the route
which must be followed, we are at a distance of 1,500 or 1,600
miles from Richmond, and to reach it have to pass through hostile
territory, guarded at every point, how can we hope to obtain evi-
dence in less than thirty days * We could get it in ten days, if a
safe conduct had been granted to a messenger.
Judye Coursol.—This is a very important matter, and requires
gome consideration. I shall give a decision at two o’clock.
After recess, Judge Coursol gave judgment as follows An
application on the part of the prisoners to obtain a delay of one
month for the production of evidence for the defence has been very
urgently and ably argued before me _ this day. ‘This application
has been opposed by Mr. Johnson, representing the Crown, and Mr.
Devlin, in the name of the American authorities, upon the ground
that although in cases of local offences I possessed the power of
granting such an application, under the treaty I did not possess
that power, as I would be thereby virtually assuming the Juris-
diction of the American Courts to try the accused. ‘This question
arises for the first time, as we find in the Chesapeake and
other cases that witnesses for the defence were examined with-
out objection. I do not profess at present to decide the point
absolutely, but have come to the conclusion to allow the examina-
tion of witnesses on the part of the prisoners, subject to the objec-
tion, as my desire is to afford to the accused as well as to the
prosecution, the exercise of every right to which by law they are
entitled in a Canadian Court of Justice. It is contended that by
admitting evidence for the defence I virtually try the accused. [
totally differ from that view, and for this obvious reason, that the
special Act to give effect to the treaty requires that I should be per-
ne es
e a3 eee . ee = Rea ts eae one i - =a
ea Ss SEe .~ kW y ee iad os = = x fs e need ay
: ~ - ee x m at eee 4s Sg
OE A Aw
= = 2
—
a
aay
116
fectly satisfied of the criminality of the actof the accused according to
our own law. The affidavit shows that the accused propose to prove
that anything they may have done was an act of legitimate warfare,
and as international law is a part of the common law of this country,
affecting the character of homicide and other felonies when com-
mitted under special circumstances, I cannot be prepared to give
any opinion upon the evidence of criminality until I have the whole
case before me. The evidence proposed to be adduced may not affect
the case laid before me by the prosecution, but I feel that T should
be guilty of an act of injustice if I deprived the accused of the
opportunity of placing their evidence before me, reserving to myself
finally to determine the objection now made to the hearing of evi-
dence, when the case is finally closed and left to my decision. “Having
thus disposed of this pomt, the next consideration is what delay
shall be granted. The application is for one month, and the ques-
tion in my mind is whether such a delay be a reasonable one or not.
T have arrived at the conclusion that, under the special cireum-
stances disclosed in the affidavit, to grant merely a week or a fort-
night would be tantamount to refusing the application, and I will
therefore grant until the 13th of December next, upon the express
condition that, if the prosecution so desire it, the further proceed-
ings upon the other charges shall be suspended until the evidence
for the defence and the argument in this case shall be fully con-
cluded, and also, in that event, the prisoners must place before me
a written application that they be remanded upon all the charges
until the said 15th day of December next.
Mr. Devlin then said he would state without hesitation that the
prosecution would not proceed with any of the other charges until
this case was finally decided, the arguments concluded, and His
Honor’s decision given on its merits.
Judge Coursol.—The prosecution may do as it thinks proper
until the arguments and the witnesses shall be heard.
Mr. Devlin.—You grant this delay, making it a condition that
this case is to be finally concluded, and the opinion of the Court
expressed before we arc called upon to proceed on any further
charge. I state that we will not do so.
Judge Coursol.—The evidence in the other cases will not be gone
into, until the defence and arguments in this are fully concluded.
Mr. Devlin.—We will avail ourselves of that part of your
‘ Honor’s judgment, and will not procecd till the case is fully
determined.
Mr. Kerr.—Is the decision of the Court to be pronounced in
this case previous to going on with any others ?
Judge Coursol.—I am not prepared to say so. My judgment is
that the evidence in other cases shall not be gone into, till the
defence and arguments in this case shall be fully closed.
rding to
to prove
warfare,
country,
on com-
to give
ie whole
ot affect
[ should
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» myself
of evi-
Having
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ly con-
ore me
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iat the
s until
hd His
proper
mn. that
Court
urther
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ded.
your
fully
ed in
ent is
ll the
117
Mr. Kerr.—Very well, your Honor.
Judge Coursol.—Something has been said about pressure, but I
can say that neither favor nor affection has ever been allowed to
interfere with justice since I have had a seat on this Bench, and I
am sure my fellow-citizens will be prepared to give me that endor-
sation.
Mr. Kerr.—We are perfectly convinced of that, your Honor.
Judye Courso!.—I shall require, in writing, from your clients,
Mr. Kerr, that they will not apply for any release wntil the 13th
of December.
Mr. Devlin.—I am requested by my friends from the United
States to say that they concur in the judgment given by your
Honor. They desire me to say that they concur fully in the post-
ponement of the matter for a month, provided the other cases are
not gone on with till this one is finished.
Tuesday, Dee. 13.
The enquiry into the facts of this raid, adjourned, nearly a
a month ago, till to-day, in order to afford time for the production
of evidence for the defence, from Richmond, was resumed this
morning before Judge Coursol.
Messrs. Abbott and Laflamme, Q.C., and Mr. Kerr, appeared
for the defence, Mr. Johnson for the Crown, and Mr. Ritchie and
Mr. Devlin for the U. 8. Government.
The accused oceupied the petit jury box.
Mr. Kerr.—I wish to bring under your Honor’s notice a ques-
tion affecting your jurisdiction i in this case.
The Judye of the Sessions.—As Judge of the Sessions ¢
Mr, Kerr.—As Judge of the Sessions, or in any other capacity
in which you may sit.
Mr. Devlin said the enquiry had been adjourned till to-day to
enable the accused to adduce evidence in their defence, and the
Court was in session to hear this testimony, and not an argument
upon the law of the case. ‘This proceeding of the learned gentle-
man was an attempt to take advantage of the prosecution ; and he
(Mr. D.) would call on the defence to proceed with the witnesses.
Mr, Kerr.—My objection goes to the jurisdiction of the Court.
If it has no jurisdiction, it has no right to hear witnesses. I pre-
tend that the whole of the proceedings are wrong.
Mr, Devlin pressed for a decision upon his proposition.
The Judge of the Sessions.—The objection is to my jurisdiction
in toto?
Mr. Kerr.—Yes. I deny your right to sit at all.
Lhe Court.—The objection cannot he disregarded. I am bound
to hear the exceptions to my jurisdiction.
Seabee
=——s
SSS ee
i. ae — - amin aan c=
118
Mr, Johnston.—I have no objection to hear them.
Mr. Werr then said,—By the Union Act it is provided that the
Canadian Parliament shall have power to make laws not repugnant
to that Act, or to such parts, &c., or to any Act of Parliament
made or to be made, and not thereby repealed, which does or shall,
by express enactment or by necessary intendment, extend to the
Provinces of Upper and Lower Canada, or to either of them, or to
the Province of Canada; and all such laws passed and assented to
by Ier Majesty, or in Her Majesty’s name by the Governor, &c.,
shall be valid and binding, &c., within the Province of Canada.
The condition precedent, then, to the fact of statutes being valid
and binding, is that they are not repugnant to any Imperial Act
which either expressly or impliedly extends to the Province of
Canada. Acts to which Ifer Majesty has given her assent after reser-
vation, are subject to the operation of the condition precedent. By
the Treaty of 1842, guoad extradition, it was provided that upon mu-
tual requisition by the two States contracting, their Ministers, offi-
cers, Xc., made, it was agreed the United States and Great Britain
should deliver up to justice all persons charged with the crimes
specified in the aad Treaty, committed within the jurisdiction of
either of the high contracting parties, who should seek an asylum
or be found within the territories of the other. This should only
be done upon certain evidence, and it proceeded to say that the
respective judges and other magistrates of the two governments
should have power and authority “to issue a warrant, Ke. By this
Treaty the contracting parties pledged themselves to vest in all
their judges and other magistrates power and authority to take
cognizance of and exercise jurisdiction over such crimes, neither
judges nor magistrates having at the time any Common Law or
statutory power to take cognizance of such offences. ‘The Imperial
Act 6 and 7 Vic., cap. 77, was then passed by the Parliament of
Great Britain, for the purpose of giving effect to the said ‘Treaty,
and it was therein provided, that previous to the arrest of any
offender, a warrant should issue under the hand of the Secretary
in Great Britain, or of the person administering the government of
the Province, signifying that a requisition had been made by the
authority of the United States for the delivery of the offender, and
requiring all Justices of the Peace, &c., to govern themselves ac-
cordingly, and to aid in apprehending the persons accused. It is
perfectly clear from the principles of the Common Law, and also
from the wording of the Act in question, that none of the magis-
trates or other officers were vested, previous to the passing of that
Act, with power to arrest or take cognizance of offences committed
on foreign soil, for the Act in question was passed to give them
those powers, and it is to be remarked that the words of the Statute
"
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a
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119
carry into effect the Treaty. This Statute, of course, extended
its operation over all the dominions of Great Britain, and as soon
as passed and assented to, became law in Canada. By the fifth
section it was, however, provided that, “if by any law or ordinance
** thereafter made by the local Legis ture of any British Colony
‘* or possession abroad, provision shall be made for carrying into
‘* complete effect, within such colony or possession, the ohjects of
‘“* the said Act, by the substitution of some other enactment in licu
* thereof; then Her Majesty might, with the advice of her Privy
“ Council, Gif to Her Majesty in Council it seems meet, but not
* otherwise,) suspend within any such colony or possession the
‘* operation of the said Act of the Imperial Parliament, so long as
“such substituted enactment continues in force there, and no
“longer.” The 12th Vic., ¢. 19, was passed by the Parliament
of Canada as such substituted enactment, and was reserved for
IIer Majesty’s assent; that assent was given, and on the 28th
March, 1850, Her Majesty i in Council, by order, suspended the
Imperial Act so long as the 12th Vic., c. 19, should be in foree,
and no longer.
The Court.—Was the 12th Victoria sanctioned ?
Mr, Kerv.—It was a reserved Act. The Order in Council was
pr oclaimed by the Governor General in the Canada Crazette, page
8295, May 1850. Thereupon the Imperial Aci was suspended in
Canada during the continuance in force of the 12th Vict., chap. 19.
By ‘the Act respecting the Consolidated Statutes of “Canada,”
(22nd Vic., chap. 29, C. 8. C., page XXXVI), the 5th section,
it is provided that from the day mentioned in the proclamation
provided for by s. 4, all the enactments in the several acts, and
parts of acts in such amended schedule A, mentioned as repealed,
shall stand and be repealed; by the 9th section it is enacted that
if the provisions of the Consolidated Statutes are not the same as
those of the repealed acts guoad transactions after those statutes
came into effect, the provisions of the Consolidated Statutes shall
prevail. In schedule A (C.58.C., page 1203), appears as repealed,
12 Vic., chap. 19. Upon the proclamation by the Governor
General, of the Consolidated Statutes, there appeared as chap. 89
of the 22nd Vic., ‘“ An Act respecting the treaty, between Her
Majesty and the United States of America, for the apprehension
and surrender of certain offenders.” By the 24th Vic., chap. 6,
the first, second, and third sections of the 89th chap., C. 8. C.,
above referred to, were repealed absolutely, and for the said
sections were submitted thr ec other sections. By the first section
substituted, jurisdiction was taken away from the justices of the
peace throughout the Province, and to certain functionaries alone
was given the power to take a complaint and issue a warrant.
120
Under the 12th Vic., chap. 19, and c. 89 of the Consolidated
Statutes of Canada, the evidence in the opinion of the judge or
justice of the peace should be sufficient to sustain the charge ;
under the 24th Vic., chap. 6, it is only necessary to be such as
would justify his appr chension and committal for trial. Here then
are grave changes from the provisions of the 12th Vic., chap. 19.
We have, moreover, the absolute repeal of that statute hy the Act
2 Vic., chap. 29; it is true that it was substantially re-enacted
the 89th chap. of the Con. Stat. of Canada, but from the very
moment of its repeak the Imperial Statute revived and remained in
force in this country until a new order of the Queen in Council had
been published, suspending its operations during the continuance in
force of the 89th chap. of the Con. Stat. of Canada. But to make
assurance doubly sure, the 24th Vic., chap 6, absolutely repealed
all the three first clauses of the 89th chap. C. 8. C., and substituted
in their places three clauses which had never been submitted to the
consideration of Ifer Majesty in Council, clauses, moreover, which
cannot be looked upon as giving complete effect to the treaty, as
thereby some of the officers. expr ressly named in the treaty as those
to whom power to act thereunder should be given, have been ousted
of their jurisdiction. It must be taken for granted that the Order
in Council having the effect of putting life into any Act of Parlia-
ment passed by our legislature, must be posterior in date thereto ;
in fact, it is nothing more than requiring that previous to the
coming into force of the substituted Act, Her Majesty’s assent
thereto should only be given by such Order in Council. The
power to repeal any act “of our Legislature belongs to our Legis-
lature ; no restriction is by Imperial Act imposed on the rep seal
of the substituted enactment, and no other body, save our Legis-
lature, in the natural course of things, could repeal its Acts ;
consequently the repeal of the three clauses of chap. 89, of the
Consolidated Statutes of Canada is valid ; but the clauses sought
to be substituted have, as yet, no life in them,—they are but
inanimate bodies, awaiting the breath of life from the order of Her
Majesty in Her Privy Council. ‘The state of the law then is, that
in lieu of our Provincial Statutes, or any of them, being in foree,
the Imperial Act, temporarily suspended quoad this Province by
the Order in Council of the 28th March, 1850. since the repeal of
the 12th Vic.,.chap. 19 (whether by the Consolidated Statutes, or
by the 24th Vic., chap. 6, is indifferent), regulates all proceedings
for extradition, and previous to any of the “officers therein named
issuing a warrant or arresting a person charged with the com-
mission of one of the crimes (mentioned in th treaty), m_ the
United States, it was absolutely essential, in order to give your
Honor jurisdiction in the matter, that a warrant should be issued
laced
re or
ree ;
h as
then
, 19.
Act
cted
very
din
had
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121
from the Governor General, according to the provisions of the
Imperial Act. No such warrant, however, has been issued ; and
you have not, nor had you at any time, jurisdiction in these cases
to arrest the prisoners.
The Court.—Your argument is, in effect, that, according to the
Imperial Act, it would be necessary to the arrest of the accused
that a warrant of apprehension signed by the Governor General
should be issued; that owing to the circumstances mentioned, the
Imperial Act has revived and is now in foree, and that under it I
would have no jurisdiction in this case ?
Mr. Kerr.—No jurisdiction, no warrant having issued.
Mr. Devlin thought that a reply to such arguments, on the part
of the counsel on the other side, was unnecessary. Ie would
merely remind His Honor that he acted at present under the law
of the land—acted under the powers conferred upon him by chap.
6, 24th Vic. Was the Ashburton Treaty in foree—yes, or no?
One might assume from the argument just heard that we had been
living in blissful ignoranee of our rights and of the law of the land
in this matter till the present moment. ‘The learned counsel just
sat down called upon the Court to trample upon the law of the
land, and ignore the authority conferred upon him by the Provin-
cial Legislature. Had the Court the power or jurisdiction to set
aside a solemn act of Parliament, while sitting in his present capa-
city ? Such power was not vested in him; and if the Legislature
had failed to pass a law that would give force and effect to the
Imperial Treaty, they were the party to make due amends. The
Act passed in 1861 gave His Honor full power to dispose of such
cases, and this Act was assented to by Her Majesty, and had not
since been repealed or disallowed. With regard to the argument
that the Court was without jurisdiction because no warrant had
been issued signed by the Governor General, he (Mr. D.) would
remark that fugitives from justice had frequently been arrested here
without a warrant in the first instance, except one from the local
judge or magistrate charged with the execution of the provisions of
the Treaty ; for this reason: if the authorities of the United States
were obliged to wait till all those formalities were complied with, a
murderer or robber whose extradition was demanded could effect
his escape from this Province before any steps could be taken to
secure his arrest: and, say the Judges of the United States, “ the
Treaty would in this way be rendered nugatory.”? But even if
there was no law for such arrests, it was not in the Court’s power,
while in his present position, to set aside a solemn act of the Legis-
lature of Canada.
The Court.—It would be very well for the public convenience,
but it would not be law to arrest parties on either side the lines
without * warrant. I cannot accept that argument as law.
= mink is rent 2. ae >
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122
Mr, Devlin did not mean to say that parties should be arrested
in this Province without some authority ; but he meant that it was
in lis Honor’s power to issue his warrant for the apprehension of
a fugitive before waiting for other authority, or a warrant from the
Governor. ‘The opposite pretension would cause a frustration of
justice, and render it impossible to carry out the provisions of the
Treaty.
Mr, Johnson said Mr. Kerr was in error in stating that 12 Vie.,
chap. 19, had been repealed. No such thing. ILe had cited from
the schedule annexed to the Act to show it had been repealed.
But repealed for what—for the purpose of consolidation with the
other statutes. It is now reproduced in the Consolidated Statutes,
and exists with the exception of three clauses. The 6th and 7th
Victoria (Imperial Statute) was suspended by proclamation of Her
Majesty, and the 12th Vic. cap. 19 introduced as the law which
ought to guide the mode of procedure under the Ashburton Treaty.
But this Act never was repealed, being reproduced in the Consoli-
dated Statutes. The Consolidated Statntes, chap. 29, page xxxviii
set forth that it should not be held to operate as new law, but
should have effect as consolidated and as declaratory of the law
contained in the Acts so repealed, and for which they were substi-
tuted. Ilis Honor, therefore, had jurisdiction to proceed without
a warrant from any governor or any executive authority under the
Consolidated Statutes now existing.
Mr. Kerr said they did not require the judge to set aside any
Act. As long as the proclamation of Her Majesty, giving effect to
the amended Act, was withheld, it remained in our statute book
inanimate. It wanted breath and life to be infused into it by the
order in Council. He contended that by the 24th Vic., chap. 6,
the 12th Vic., chap. 19, had been absolutely repealed, and it could
not be pretended that the substitution by our Legislature of three
clauses other than those assented to by Her Majesty did not alter
the 12th Vic., chap. 19, and destroy its force.
The Court said it was a knotty point, and must be taken into
consideration.
Mr. Devlin.—You can go on with the examination of the wit-
nesses in the meantime.
The Court.—Not when the question is as to jurisdiction.
The Court now adjourned until two o’clock.
THE RAIDERS DISCHARGED.
At three o’clock the Judge of the Sessions came into Court and
proceeded as follows to vive his decision upon the objections to his
jurisdiction raised in the forenoon :—
sted
was
n of
the
1 of
the
123
The point I am now called upon to decide is one of very great
importance, inasmuch as my jurisdiction and my authority to act in
this case has been put in question, and is now for the first time
directly denied.
It is contended on behalf of the prison — that the Treaty being
a national act, the imperial enacment must be regarded as the
Supreme Law, and our colomal Leyislatures as subordinate to it.
And that the effect of Her Majesty's Royal Proclamation suspen-
ding the imperial enactment to give effect to our 12th Vic., so long
as such substitututed provisions of that act remaimed in foree, and
no longer, necessarily revived the provisions of the Imperial Act,
the moment our local Levislature repealed the substituted enact-
ment and provisions of our Provincial Legislature.
It is also contended that the new provisions enacted by the 24th
Vic., changed saa those of the 12th Vie., approved by Her
Majesty, with the advice of her Privy Council, and that the same
approval was avain necessary to vive effect to these new provisions,
and that the arrest of the parties charged, could only have been
made upon a warrant signed by the Governor General or person
administering the government of Canada in the terms of the Impe-
rial Act,
On the other side, on the part of the defence, it is argued that
the 24th Vic., has been sanctioned by the Governor General, and
having been disallowed by Her Majesty within two years which
period had passed long before the arrest of the accused, that it has
power of law. Also, that I have no power to declare the 24th Vic.,
unconstitutional or void.
This argument would be conclusive if the Act related to a local
matter, within the ordinary jurisdiction of our Levislature, and
interpreting the clauses quoted of the Union Act as I do now, I
hold that this provision as to the disallowance of a measure passed
by our Legislature, can only have reference to such measures as
our own legislature can originate.
In this case it is different, the subject matter is a-national one,
it has a reference to a treaty between Great Britain and a foreign
nation, and the imperial act must be regarded as the law which
governs the case. ‘That our legislation is subordinate to it in this
instance, and in the absence of any sanction, or formal approval
given by the Queen to the 24th Vic., in the special form required
by the Imperial Act, such as was given to the 12th Vic. I am of
opinion that by repealing the clauses of that Act conferring juris-
diction, the ye enactments revived. Iam not called here
upon to declare the 24th Vic. unconstitutional or void, but simply
state what law is in force, and I feel that I am bound to obey the
imperial authority in a matter of national concern, and without which
the treaty would never have been put in operation.
AB esetw E
a r
7 a ee |
_—
124
After giving to these different objections my most deliberate
attention, L have come to the following conclusion :—
1. That the Imperial Act passed to give effect to the treaty is to
be revarded as the supreme power and authority, and to be taken
as my sole guide in this case, and that the Canadian enactment
could take effect ouly, so long as the permissive power granted to
our local legislature has heen strictly pursued, followed by the
sanction of Her M: ajesty’s Privy Council suspending the imperial
enactinents, and giving force and effect to our local legislation,
2. That the 12th Vie. passed by our legislature with the view
to substitute provisions to those contained in the Imperial Act, did
not become the law of this Province without the Royal sanction
first beg given to it, in the form of a special approval by Her
Majesty, with the advice of Her Privy Council; and in the terms
of the Imperial Act, the suspension was not absolute, but limited to
such a time as the 12th Vie. should remain in foree, ‘and no longer.
3. That the substituted provisions of the 12th Vie. having been
repealed by the 24th Vie. cap. 19, the provisions of the Imperial
Act are revised, which provisions to confer jurisdiction require the
issuing of a warrant in the fist place, by the Governor General, or
the person administering the government of Canada. .
4, That while admitting, as contended by the learned and able
gentlemen representing the prosecution, that unless the Union
had had in all matters relating to local government, the sanction of
the Governor General on behalf of Her Majesty the Queen, 1s sufhi-
cient to make a law operative, still the subject matter in this case
being a treaty between two nations req™iring imperial legislation to
sive it effect the case is so exceptional ii tS character that [ am
compelled to look to the proposed Act to decide what is the force of
our local legislature in that respect,
Giving, therefore, to the 5th section of the Imperial Act a broad
and legal interpretation, I cannot arrive at any other conclusion
than that any substituted enactment to that Act of our Legislature
must not only be approved hy Her Majesty of Her Privy Council,
but also that an order of suspension must expressly be made to
give it effect.
That the new provision contained in the 24th Vic., changed
very materially the provisions of the 12th Vic., approved by Her
Majesty by Royal Proclamations, issued with the advice of Her
Majesty’s Privy Council, by removing from all of Her Majesty’s
Justices of the peace jurisdiction in these matters, which, by the
terms of the treaty itself, is conferred upon them, giving such
powers to the Judges of our Superior Courts and to the local
officers not des siomated in the 12th Vic., and thus, in my
humble opinion, the new provisions of the 24th Vic. are sub-
ject to the following objections at bein Colonial mea
sure, it was not within the power our Le it change
the jurisdiction established by the Treaty, withont «press iy
sanction of Her Majesty, with the advice of her | Counci i)
in the same form and in the same manner as was to |
effect to the 12th Vie., Vi2., the express order of 11 jes
suspending by Her Majesty's pleasure the Imperial enactments s ae
long as the enactments contained in the 12th Vie. should remain in
foree, and no longer. The 24th Vie., cap. 19, is entitled an Act tig
to amend the chap. 8 of the Consolidated Statutes of Canada meena) |
(the same as the 12th Vie.), and has, in most positive words, re- ai
pealed the Ist, 2d and 3d of the four sections of the said Provincial Pat
Act, and substituted certain new cnactments already mentioned,
This Act having been passed and sanctioned, the repealing part is i
good ; therefore the suspended parts of the Imperial Act are re- Bet
vived by such repeal, and are again in operation, Thus the Bes
suspended provisions of the Imperia al Act bemg revived, the only Wl
law which can govern this case are the revived Inpe ‘rial provisions,
in so far as jurl isdiction is concerned, and the manner of proceeding
to obtain the arrest and extradition of fugitives. The only unre- bid
pealed provisions of the 12th Vic., namely , the 4th section, refer nf
only to the remedy given to parties committed who are not extré
dited within two months after the date of their final committal ; but
the provision of the 4th section cannot even be regarded as a |
substitute prévision, as it merely re-cnacts a similar provision a)
to be found in the Imperial Act. Consequently the repeal
may be considered complete, in so far as the substitute provisions
are concerned. I deem it my duty, in giving this judgment, to
explain that the part I have taken in this case in ordering the
arrest of the accused, was prompted by a desire to do my ‘duty,
the moment proper information was laid before me that an outrage
was committed, and I acted upon a law which is to be found in
the statutes of this Province. The objection having been raised
for the time at this late stage of the proceedings, I felt that I had
no alternative but to decide it. If I could have reserved the point ie
for the decision of a higher tribunal, I would most willingly, and I AG
may say cheerfully, have done so, but the objection being one }
formally directed against my jurisdiction, I came to the conclusion
that every judge or magistrate, in a case where the liberty of the
person is concerned, should be prepared positively, and in a definite 4
manner, to decide whether he has jurisdiction or not. I therefore hem |
now decide, that having had no warrant from the Governor General rau
to authorize the arrest of the accused, as is required by the Im-
perial Act, I have and possess no jurisdiction ; ; consequently, 1 am
bound in law, justice, and fairness, to order the immediate release
&
120
of the ga from custody upon all the charges brought before
me. Let the prisoners be discharged.
Mr, Devlin.—Betore you deliver that order, I trust you will
hear the counsel for the United States on a matter of such great
importance. We desire to bring under your notice this important
fact, that only one application has been made to you, and that the
counsel who addressed you this morning appeared only in the case
of the St. Albans bank, which has been the subject of investigation
hitherto. You are aware it was determined that only one case
could be proceeded with at a time, and therefore the application
addressed to you was for the discharge of the prisoners in this
particular case. Youowe it to the gentlemen sent here to support
what they conecive to be the just claims of the United States
Government in this matter, and to justice also, to afford them a
reasonable opportunity of putting before this Court the claims of their
clients. When only one application has been made, should it be said
that a Judge in a British Court, where fair play was peculiarly tobe
expected, s should have disposed of six cases on an applic ation with
regard to one only, without the counsel for the United States being
allowed to inte rpose a single objection, or offer a single remark. What
would be said of a British Judge im such circumstances? ‘The
counsel for the defence know perfectly well that such a case would
be utterly unprecedented. They know that, having had the benefit
of your ruling, the Courts were open to them to obtain for their
clients that relief which they had a right to expect. But let them
come forward with their applic ations. ave you not issued six
warrants against the accused 2? You have only one warrant before
you now, and only one charge. Therefore, I call on you to hesitate
before discharging them from six other accusations which we have
not had a single opportunity of addressing the Court on. Would
you order the. discharge of a criminal accused on als indictments,
because acyuitted on one, without trial on the others’ You would.
never sanction such a thine, and this is what you would be doing
in this case. Asa judge, you are not supposed to know that the
proceedings in the other cases are not strictly correct. If you
carry out this order, it will be satd our Judges prejudged cases,
because, while being addressed on one they disposed of others.
The char acter of the. judiciary for fair play is at stake ; and though
there are in this city men who sympathize with the enemies
of the U.S., I have yet to learn there 1s one who is not a
lover of fair play and British justice to all parties. I will state
my conviction that if the chents we represent here are made to
feel that when they enter a British Court of Justice their claim
will not be heard, we must be prepared to submit to the conse-
quences. No country in the world has shown more real fairness
‘fore
will
reat
tant
the
“age
tion
ase
ion
his
ort
tes
1a
or
id
be
127
and justice to England in matters of extradition than the United
States. The authorities show that when England has demanded
the extradition of a fugitive from justice, the highest and the
lowest judges, and all the authorities have combined to vive effect
to this most beneficial law ; and no man can say the United States
Government or authorities ever threw an obstacle in the ws iy of an
extradition rightfully demanded. I sincerely hope you will not
then dismiss the other cases with which we are now prepared to
proceed. If you deny us this legitimate opportunity of repre-
senting our claims, it will be said ‘that advanti ave has been taken
of this prosecution, and of the counsel pn this side. I again hope
you will sanction no act which would be as repugnant to justice, as
insulting to our clients. You will recollect that the other judges
have a right to adjudicate in this matter, having concurrent juris-
diction.
The Court.—I have decided I have no jurisdiction in this case
after a careful consideration.
Mr. Johnson said it appeared to lim Mr. Devlin misunderstood
the decision, evidently thinking the Court discharged the accused
in every case, as to murder, robbery, Xe.
The Court.—I discharge them in every case before me.
Mr. Laflamme wi ated to know if counsel had a right to arzue
upon a judgment amd discuss its merits. The Court could not
more clearly explain the grounds of the judement. The prisoners
were discharged from all the accusations, and were free, and any
remarks made by counsel might he inade for their benefit after the
Court was over.
Mr. Johnson was not prepared to say one word against the
judgment, having merely risen to remark that he represented the
Crown, which had an interest in this case also, but of a very
different description from that of his learned friend (Mr. D.)
Hon. Mr. Rose.—As representing the authorities of the United
States in this matter, which is of very great national concern, I
trust you will allow me to ask whether we have rightly understood
the judgment just given ?
‘ihe Court-—I will read it again, and shall answer Mr. Devlin
in a few words.
Hon. Mr. Rose.—I don’t design to say a word against the
judgment, but to ask a question respecting it. (The hon. gentle-
man was proceeding to put the question, when)
The Court interrupted. He had allowed one of the gentlemen
representing the Federal Government, and Mr. Johnson, repre-
senting the Crown, to speak, permitting the former to explain
himself, and say more, probably, than any other Court would have
listened to under similar circumstances. Understanding the full
128
amount of his responsibility in this matter, and determined that he
should perform his duty according to the rules of British justice,
he had come to the conclusion that, having no jurisdiction in one
vase, he could certainly have none in the others. If he had no
jurisdiction to arrest the accused on the charge preferred, he had
no right to keep them in custody for one moment longer. He
knew now, that from the beginning of this case to the present,
that those parties had been arrested without any legal warrant.
As soon as the want of jurisdiction in this matter became apparent,
after a legal test, desirme to administer justice in a Canadian
Court in the same w ay and ‘with the same spirit cf impartiality and
fairness, as it was, had been, and would be, thank God, always
administered in all nee Her Majesty's dominions, he was convinced
that he had not the shadow of a right to detain tho prisoners one
minute longer. TTaving no jurisdiction i in one case he had none in
the others, and would frankly declare his warrant was null and
the whole proceedings irregular.
Hon. Mr. Rose.—'here was no application for the discharge of
the prisoners on the other accusations.
The Court.—I care not. It is the duty of a British Judge,
when he sees he has no right to retain a prisoner in custody, to
liberate him on the spot.
Hon. Mr, Rose—With all respect to your Tfonor, T dissent from
the soundness of the judgment in this case.
The Court.—Not a word more on this matter. I know the
weight of the responsibility of such a course, but I am bound as a
Magistrate to do what my conscience and duty direct, without
regard to influences, feelings or consequences.
4
if
*
tA
eae:
Steen ee
129
é i |
ns PROCEEDINGS BEFORE JUDGE SMITH.
a | Immediately after the discharge of the prisoners by Judge ME
nad 1 Coursol, Mr. Justice Smith issued a warrant for the re-arrest of ap
He the prisoners, similar to those under which they had heen previously 21) ee
sent, in custody. On this warrant, five out of the thirteen, namely,
rant. Lieutenant Bennett H. Young, W. I. Hutchinson, Squire ‘Turner
rent, j Teavis, Charles Moore Swaver, and Marcus Spurr, were again
inhi arrested, near Quebec, on the 20th day of December, 1804,
and and brought back to Montreal for examination. ‘The following are
ways the proceedings in the Superior Court, before Justice Smith, on.
need the demand for their extradition.
fone PROVING SOF CANAD I
d District of Montreal.
The examination of Cyrus Newton Bishop, of St: Albans, in the
re of State of Vermont, one of the United States of America, teller, now
of the city of Montreal, i in the District of Montreal, taker n on oath
dive this 27th day of December, in the year of our Lord one thousand a
eight hundred and sixty-four, in the Court-house in the city of
Montre: al, in the District of Montreal aforesaid, before the under-
signed, the Honorable James Smith, one of Her Majesty’s Justices
of the Superior Court for Lower C Canada, i in the presence and hear-
Pig ing of Squire Turner Teavis, Charles Moore Swager, Bennett HH.
Young, Mareus Spurr, and Wilham I. ILutchinson, who are now
charged before me, upon complaint made under oath before me,
under the a of the Treaty between iis Majesty the
Queen and the United States of America, and our Statutes in that
behalf made, with having committed within the jurisdiction of the
United States of Americ a, the following crime mentioned in the
Treaty between Her Majesty the Queen and the United States of
America, to wit:
For that they, the said Squire Turner Teavis, Charles Moore
Swager, Bennett II. Young, Mareus Spurr, and William LH. Hutch-
inson, on the nineteenth day of October last past, at the town of
St. Albans aforesaid, in the State of Vermont, one of the United
States of America, and within the jurisdiction of the said United
States of America, being then and there armed with certain offen-
sive weapons and instruments, to wit: Pistols commonly called
revolvers, loaded with powder and ball, and capped, in and upon
one Samuel Breck feloniously did make an assault, and him the
said Samuel Breck in bodily fear and in danger of his life did put,
and a certain sum of moncy, to wit, to the ‘amount of three hun-
dred dollars current money of the United States of America, and
I
of the value of three hundred dollars current money aforesaid, of
the moneys and property of the said Samuel Breck, and another
his co-partner in trade, to wit, one Jonathan Weathertrce, from the
person and against the will of the said Samuel Breck, then and
there feloniously and violently did steal, take and carry away,
against the form of the Statutes of the said State of Vermont, and
against the peace and dignity of the said State.
The deponent, Cyrus Newton Bishop, being duly sworn, depos-
eth and saith :—On the nineteenth day of October last, I was ful-
filling the duties of teller of a certain banking institution kngwn as
the St. Albans bank, in the town of St. Albans aforesaid, between
the hours of three and four o’clock of that day, in the afternoon.
Two men, strangers to me, entered the bank. They came up to
the front of the counter. I stepped along to the counter. They
immediately presented cach of them a revolver to my breast. I
was about three feet from them at this time. I recognize one of
these men now in Court. Ilis name is Marcus Spurr. I imme-
diately went into the Directors’ room, which is adjoming. I suc-
ceeded in closing the door nearly, and they rushed against it and
forced it open. ‘The door struck me in the forehead and bruised
me. Immediately one of them named Collins scized me by
the shoulder, and presenting a revolver at the same time to my
head, and the said Marcus Spurr also presented a revolver at
my head, and they said to me, that if I gave any alarm or made
any resistance they would blow my brains out. At this time three
other parties came into the bank, who were then and still are
strangers tome. ‘The said Collins then asked me where we kept
our gold and silver. I told him we had no gold. THe then asked
me if we had anysilver. I told him we had. He asked me where
it was. I told him it was in a safe, and pointed it out to him.
Then he, the said Collins, administered to me, and to one Martin
A. Seymour, a clerk in the bank, some sort of an oath, to the
effect that we would not give any alarm, or fire on the Confederate
soldiers. Then they proceeded to pack up the money, and they
then ordered me to open the safe in the Directors’ room. I opened
it, and they immediately pulled out two or three bags of silver,
about fourteen hundred dollars’ worth. One remarked to the
other, ** We cannot carry so much.’” Thereupon they broke open
the bags and filled their pockets. They took all they could carry.
They took also all the bills of the bank and the bills of other banks
in our safe, and a lot of money of the United States, commonly
known as greenbacks. During the time they were in the bank
they locked the door of the bank, and some person came to the
door and knocked for admittance. They opened the door, and the
person came in, and this person was one Samuel Breck, of St.
151
Alban aforesaid, merchant. After admitting Mr. Breck they
immediately locked the door again. One of them put a revolver
to his head, and demanded his “surrender as their prisoner. ‘They
took hold a him and forced him against the counter, and demanded
his money, which he had in his “hand. Te began to debate the
question with them, and said that it was private property. I spoke
to him, and said that he had better give it up to them. I said
they had robbed us, and as they had wot us, we were obliged to
give up the money. They forced him into the Directors’ room. I
learnt that the amount they took from him was about four hundred
dollars American currency. ‘These parties also threatened the said
Breck that if he gave any alarm they would shoot him. ‘There was
another rap at the door by some one wishing to gain admission.
They opened the door, and the person came in, who was a clerk in
the store of Joseph S. Weeks, and they seized him by the shoul-
der and forced him into the Directors’ room, and ordered him to
remain there with the rest of us, and we were all kept in that
room. About this time [heard some firing in the streets. I stood
opposite the window and saw into the strect, and I then saw per-
sons on horseback riding to and fro. They were firing revolvers
at the citizens of St. Albans. Immediately afterwards three of
these parties left the bank, leaving two in the bank as guards over
us. ‘These also left ina few minutes. During all these proceed-
ings these five persons were acting in concert. L allude, of course,
to the five persons who came into the bank and committed the
robbery as aforesaid, of which five persons the said Marcus Spurr,
one of the prisoners now in attendance, was one.
Cross-eramined on behalf of the Confederate States.—I have
been examined before on a charge against these same men. I de-
tailed the facts respecting these matters on that occasion, and I
related on that occasion the circumstances that took place at St.
Albans on the nineteenth of October last. When the prisoner
Spurr, and Collins presented pistols at my head, I asked them what
the programme was, and what this meant; and they said they were
Confederate soldiers, detailed from Early’s army to come north
to rob and plunder, as Gen. Sheridan was doing in the Shenandoah
valley. The reason why I omitted this fact, in my examination-in-
chief, was because I supposed they wanted only the prominent
points, and this was not asked of me. Being asked whether I
omitted it intentionally or not, I say that I had no intention one
way or the other. I stated that fact when I was examined before,
in my examination-in-chief. I don’t know whether the prisoners
consider this fact of importance or not. The money that Breck
had was in his hands when it was taken from him. ‘The first firing
I saw was from the front window of the Directors’ room. The
street in which the firing was, runs nearly north and south. There
appeared to be confusion among the party riding about, some riding
in one direction and some in another. I next saw them after the
five had left the bank and after I came out on the steps. They
were more in order at that time—were collected together, and
were riding north. I could not tell whether they were under the
command of anybody or not at that time. They were at the
northern end of the bank. There were a good many people in the
streets then, more than usual. After I came out on the steps I
saw some shots fired, but not many. I heard reports, but I saw
no shots fired. I say, on reflection, that I saw some shots fired
after I came out. I cannot tell who fired these shots. I think I
know pretty well what goes on in St. Albans of any interest.
Being asked whether or no one or more of the party was wounded
at St. Albans on that occasion, I say I heard such reports, and
again heard them contradicted. Ido not know whether it is known
or not who fired on the party. I do not know whether any citizen
fired on the party, and I do not know that I am bound to say what
I believe. I saw a large bunch of money in Mr. Breck’s hand,
and he told me there was about four hundred dollars, and I believed
him. Being asked why I state my belief in reference to Mr.
Breck’s money and refuse to state my belief in reference to the
firing on the party, I say I saw Mr. Breck’s money and heard his
statement on the spot; and the other, I did not see the party fired
on, but I heard that they were, and also I hgard that report con-
tradicted. J know Mr. Fuller of St. Albans. “ I have had conver-
sation with said Mr. Fuller. He made statements to me about
what was going on generally. Ife never told me anything par-
ticularly about the firing. I heard him make statements generally,
but not more to me than to any one else. I heard him say that he
had snapped at them, and inferred that he meant he had snapped
a percussion cap at them. I did not know anything about whether
there was any powder or ball near when he snapped the percussion
caps. I think perhaps he was trying to fire at them, and that his
gun or pistol missed fire. Being asked if I have e any doubt as to
this being his intention, I say that I did not sce the transaction.
I do not know where ¥ aller was at that time. I know that a
citizen was shot that day. I understand that he was shot in the
Main street at St. Albans. I heard it reported that he was shot
near the place where Fuller was trying to fire upon the party.
This citizen fell to the north of the bank; was shot then, about
fifteen or twenty rods from it. I believe he was shot by one of the
party. The place where he fell was between the bank and the
place where I saw the party all riding off in a body. I believe—I
know personally—that there were other banks robbed at St. Albans
here
ding
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and
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; the
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13:
on that day besides the St. Albans bank. There was the Franklin
County bank and First National bank. I know it, because after-
wards I went into the banks and was told all the facts, and was
showed that they had no money—that they had been robbed, the
same as we had been. I did not notice that any buildings had been
set fire to; I understood the American Hotel and a store of Mr.
Atwood had been attempted to be set on fire. I do not recol-
lect of any other. I am aware that some ten or a dozen of
the citizens were taken prisoners and kept under guard on the
Green at St. Albans on that occasion. I should judge that for
some time the party was pretty much in possession of the town.
Tand Mr. Seymour were in the Directors’ room when Mr. Breck
eame in; I was then standing by the door ef the Directors’
room, when Mr. Breck came in. Previous to his comme in,
the party had possessed themselves of the money of the bank,
and were packing up a part of it when he entered. I swear
that there were five of the party im the bank when Mr. Breck
came in. I swear that Mareus Spurr was in the bank when
Breck’s money was taken from him. I do not know what country-
man Breck is. [ think he is a citizen of Vermont, because he has
resided there long enough to become one. Ile keeps a store at St.
Albans. Iam aware that there was a civil war raginy in the United
States on the nineteenth of October last, and still is raving there.
The Northern people call themselves the United States, and the
Southern people call themselves Rebels; T have heard them called
the Confederate States of America, that is the name they under-
take to assume. Vermont is one of the States forming the
Northern section, calling themselves the Northern States. This
war has been raving four or five years ; during that time the
Confederate States have had a President, Senate, and Congress.
The States which claim to be part of the Confederate States, are
Virginia, North and South Carolina, Georgia, florida,—-labama did,
but L do not know that she does now,—and a portion of Tennessee.
The State of Vermont has contributed money and men towards
the carrying on of this war. There was on the said nineteenth of
October, a recruiting officer and station—or rather, the municipal
authoritics recruited men for the Northern army, as they were
called upon to do from time to time hy the Government. There
was no money in our bank belonging to the United States; but
there was belonging to the State of Vermont. The party, after
leavmg St. Albans, were followed by thirty or forty of the
citizens. I do not know if they were armed ; some of them
may have had guns or revolvers; they were not all armed.
I do not know who commanded the party. The St. Albans
bank joined with the First National bank in offering a reward
BE en
134
for the money, by a placard, one of which is filed. I have
seen the term ‘ raid” used pretty often during the war.* I under-
stand that raiding means the march of an army into the enemy’s
country: by army, I mean a large or a small number of soldiers.
I have heard of Colonel Dalghreen and another general making
a raid into the Southern territory, in connection with General
Kilpatrick. Colonel Dalghreen penetrated very nearly to Rich-
mond. I do not know anything about the number of men he had
with him. I have heard that raids have been made into the Con-
federate territory by Straight, Hunter, Grey, Stoneman, and
Grierson; and [ have understcod that numerous raids have been
made into the Northern States by Southern officers. I know a
newspaper called the *“* New York World ;” and I also know of a
General called Major General Dix. He is in charge of the Eastern
department, which includes Vermont. He is a general of the
United States of America. I think a proclamation came out on
the fourteenth day of this month by General Dix. I have no
doubt but that the newspaper now showed to me, being the ** New
York World,” dated the fifteenth of December instant, a copy of
which is filed, is the genuine newspaper published in New York;
and the proclamation contained in it is the proclamation of General
Dix. To the best of my belief, the proclamation is published cor-
rectly.f ‘There has not been, to the best of my belief, any application
* The following is the reward referred tos— $10,000 Reward.—The St.
Albans bank, and the First National bank of St. Albans, Vt., were robbed by
an armed band of raiders, on the 19th Oct., 1864, of the following notes and
bank bills, viz.: (here follows the description of the notes, and caution against
receiving them.)—H. B. Sowxgs, President St. Albans bunk.—Hiram BELLows,
President First National Bank.—St. Albans, Vt., October 26, 1864.
} The following is the Proclamation referred to:
Hap QUARTERS, DEPARTMENT OF THE EAST,
New York City, December 14th, 1864.
General Orders, No. 97.
Information having been received at these head quarters that the-
rebel maurauders who were guilty of murder and robbery at St. Albans, have
been discharged from arrest, and that other enterprises are actually in prepar-
ation in Canada, the Commanding-General deems it due to the people of the
frontier towns to adopt the most prompt and efficient measures for the security
of their lives and property.
All military commanders on the frontier, are therefore instructed in case
further acts of depredation and murder are attempted, whether by marauders,
or persons acting under commissions from the rebel authorities at Richmond,
to shoot down the depredators if possible while in the commission of their
crimes: or if it be necessary with a view to their capture to cross the boundary
between the United States and Canada, said commanders are directed to
pursue them wherever they may take refuge, and if captured, they are under no
circumstances, to be surrendered, but aré to be sent to these head quarters for
trial and punishment by martial law.
The Major-General commanding this department will not hesitate to exercise
to the fullest extent the authority he possesses, under the rules of war exercised
ave
ler-
1y’s
ers.
ing
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ich-
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St.
by
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135
made to the Legislature of Vermont in respect to this money; or
that it was before them in any shape or way. I am not aware that
there is any newspaper or gazette in the United States specially
designated for the publication of official or public documents. The
custom is for all leading papers to receive such proclamations
alike, and documents also; and this, as I understand it, is the
ordinary way in which they are communicated to the public. I do
not recollect any instance in which they have been promulgated in
any other way. I understand that the President of the United
States moclified somewhat the orders of General Dix, as appears in
the “‘ New York World,” of the nineteenth day of December instant,
which paper I believe to be a genuine paper, and to have issued on
that day, a copy of which is now filed.*
Re-examined.—The prisoner, Marcus Spurr, and the four others
who acted in concert with him in the taking of the money from the
St. Albans bank, and from the person of the said Samuel Breck,
were not in uniform, but, on the contrary, were dressed in civitians”
clothes, and so were the rest of the persons who composed the party
seen in the streets, to whom I have referred as having ridden off in
a northerly direction. These parties, I suppose, came from Canada ;
but I have no personal knowledge of the fact. When I said that
some of the money taken from the St. Albans bank by Spurr and
others, belonged to the State of Vermont, I mean to say that they
had some money on deposit, and for which the bank became
responsible from the moment of its deposit.
by all civilized States, in regard to persons organizing hostile expeditions
within neutral territory, and fleeing to it for an asylum after committing acts
of depredation within our own; such an exercise of authority having become
indispensable to protect our cities and towns from incendiarism, and our people
from robbery and murder.
It is earnestly hoped that the inhabitants of our frontier districts will abstain
from all acts of retaliation on account of the outrages committed by rebel ma-
rauders, and that the proper measures of redress will be left to the action of
the public authorities.
By command of Masor-Genarat Dix,
D. T. Van Baren, C.A.A.G.
* The following is the Proclamation:
HEADQUARTERS DEPARTMENT OF THE Hast,
New York City, December Lith, 1864.
General Orders, No. 100.
The President of the United States having disapproved of that
portion of Department General Order No. 97, current series, which instructs all
military commanders on the frontier, in certain cases therein specified, to cross
the boundary line between the United States and Canada, and directs pursuit
into neutral territory, the said instruction is hereby revoked.
In case, therefore, of any future marauding expedition into our territory from
Canada, military commanders on the frontier will report to these headquarters
for orders, before crossing the boundary line in pursuit of guilty parties.
By command of Mavor-GengraL Dix.
(Official) D. T. Van Buren, Col. and A.A.G.
Cuarves QO. JopieL, Major and Aide-de-camp.
136
And further deponent saith not; and hath signed, the foregoing
deposition having been taken and read over in the presence of the
prisoners.
(Signed) CYRUS NEWTON BISHOP.
Sworn before me this twenty-
seventh day of December, one [
thousand eight hundred and
sixty-four. |
(Signed) J. Smiru, J.S.C.
Joseph I. Bettersworth, of the State of Kentucky, one of the
United States of America, now of the city of Moniea in the
District of Montreal, soldier, upon his oath saith :—ID have been in
Canada about three weeks, part of the time in ‘Toronto, and a part
of that time in prison in this city. Upon looking at the prisoners,
T say that L know them all: [ mean the prisoners calling them-
selves Bennett H. Young, Charles Moore Swager, Marcus Spurr,
William If. Uutchinson, and Squire ‘Turner 'Teavis, and now betore
this Court. I have known two of them since last August, that is
Young and Spurr ; and the others I have formed an acquaintance
with in Gaol here. 1 have been told that the banks of St. Albans
aforesaid, were robbed; I cannot say that I know when. Since |
have been in Court, I overheard that a person named Samuel Breek
was robbed, that is smee * came here in Court. I heard from
several persons that the banks were robbed. I heard this from
Mr. D. Bishop, and some others ; I never heard the ass say
that any man was robbed, nor that the banks had beenrobbed; they do
not admit that it was robbery. The prisoners admitted tome that they
had beenin St. Albans, and that they had been in the said banks, and
that they had taken the money from the banks,—they said the sum
they had so taken from the said hanks exceeded two hundred thousand
dollars. [wish to add that they did not look upon this as robbery.
They never told me how many were engaged in this matter. The
conversation which took place between the prisoners aud myself,
and which I have herein before stated, occurred since my arrest,
which was last Monday week. The prisoners also stated in my
ywresence, that they Had taken some horses from Nt. Albans.
Beins asked what they said about the money, they said it was an
act of war done in retaliation for the depredations committed in the
Shenandoah valley by our enemies. I heard them mention the
name of the St. Albans bank and other banks in connection with
this matter, and the taking of the money, I believe L heard them
say that the raid was made hy them in October last, I cannot say
the precise day. TI was not in St. Albans in the raenth of October
last.
Ong
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Question.—Do you wish the Court to understand that the five
prisoners now present and recognized by you, admitted in your
presence that they acted tozether, and that they aided and assisted
each other and in concert with each othe v, in the taking of the
money from the banks of St. Albans and in the other acts com-
mitted during the continuance of the raid ?
Answer.—I never heard anything of the kind, and do not know
whether they acted in concert or not. But they admitted to me
that they were at St. Albans on that occasion together. They
also admitted to me that they went there together for the purpose
of taking the money and burning the town. [also heard the pri-
soners say, that one man was wounded on that oceasion. | heard
one or two of the prisoners say that they had revolvers. T do not
recollect which said it. Lalso heard the prisoners say that imme-
diately after the raid, they fled to Canada. They told me that the y
eame from the Confederate amy; and [ know from circumstances
mentioned to me by one of them thi at he did come from the Con-
federate army. They did not tell me that they had been in Canada
before going to St. Albans, and I have not found out since that
they had been in Canada before going to St. Albans. IT think I
saw two of them in Canada, from the first to the fifth of August
last, vize: Mr. Young and Mr. Spurr. LT saw Mir. Young at
Toronto, and Mr. Spurr at the Clifton House, Niagara Falls. I
did not know them before that time. [was introduced to Young
at ‘Toronto, and Spurr at the Clifton House, but not by the same
person. IL do not know their names. [ do not know that Bennett
IT. Young was engaged im any business i in Canada at that time, or
Mr. Spur either. L do not know what thei object in visiting
Canada was. They did not inform me where they were going.
They did not tell me that they expected to be founil hy some of
their friends. I do not know how long they remained in Canada
after I was introduced to them. I arrived ’in Canada for the first
time about the first of Angust last, and remained here until about
the twenty-fitth of the same mouth, when I left Canada. During
my stay I Sua part of iy time at Torouto, and part at the
Niagara Falls, Canadian side. I cannot say how long before I left
that [ saw said Young. I cannot say where he was from the time
I saw him in ‘oronto until I left. I do not know that he was
engaged in the study of divinity during his stay at Toronto. Ie
did not appear like a man engaged i in such study. I met one Collins
also about the same time I had an introduetion to Mr. Y oung; this
was one of the persons engaged in the said raid, as I have “heard.
[have heard this from the prisoners, that he was one of the persons
who took part in the raid at St. Albans. I did not know Collins
personally before I was introduced to him at Toronto. I do not
Se Se
ere a : -
srstpeeneeetintnemaccmneenn
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158
recollect having met Collins and Youne together. [ have not met
a! any of the prisoners, except the two [ have mentioned, or any of
Ha the others said to be concerned in the raid.
hit Croxs-erumined on behalf of the Confederate States.—I am a
hie i Confederate soldier ; [have served in several States; [ belonged
a to John IL Morgan’s command, Second Kentucky Cavalry. com-
Bei manded by Col. ‘Duke at that time. When [ saw Spurr and Young
we at Chicago, during the Convention in August last, [ understood
hi . that they were there for the purpose of releasing the Confederate
# ik prisoners at Camp Douglass ; there was an organization going on
Ni y there for this object at that time. I was told by some of my friends,
Tes whom I know to be Confederate soldiers, and also by Young and
Whe i ‘ Spurr, that they, Young and Spurr, were in the Confederate army.
ae I was informed during the time I was in Chicago that a raid or
4,
of raids was being organized there for the purpose of plundering and
iD Hurning the Northern towns on the frontier. I am aware that
Young and Spur were then engaged in organizing such raid or
aids, “the at is Young and Spurr were in that organization. I am
aware that large quantities of arms and materials of war were stored
in Chicayo duriny the mouth of August last. ‘There is no regular
Wd uniform in the Confederate service ; if there is, they do not all wear
i uniforms. It is a fact that im many cases they, the Confederate
troops, have gone into battle in United States uniform. In the
Hee course of my experience, I have witnesssed the destruction of pri-
Se vate property by United States troops. I have been plundered by
ed them myself, being at the time a soldier, I saw a private house
eee: burning at Huntsville, Alabama, in 1861, soon after the battle of
ie 4 Shilo. I was under arrest at the time 3 after my release I was
informed by the citizens and soldiers of the United States army
i that it had been done by General Mitchell’s orders. I cannot say
T, that I can state positively that I saw any other instances of destruc-
Hi tion of private property, but I have heard of a great many which I
know to be true. I saw Collins in Chicago at the same time I saw
ri, . Young and Spurr. In the course of the conversations I had with
ae the prisoners in Gaol, upon every occasion they told me, that the
raid on St. Albans was made with the express orders of the Con-
federate Government, and further I say not and have signed, the
foregoing deposition having been taken and read in the | presence
of the prisoners.
(Signed) JOSEPH F. BETTERSWORTH.
Sworn before me, at Montreal,
this twenty-eighth day of
December, 1864.
(Signed) J. SMITH, J.8.C.
met
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ing
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lar
oar
ute
he
pri-
by
139
Samuel Breck, of the town of St. Albans, in the State of Vermont,
one of the United States of America, and now in the city of Montreal,
merchant, upon his oath, saith: [have resided in St. Albans over
a year, and am a merchant there, doing business with one Jona-
than Weatherbee, as co-partners under the firm and name of
Breck & Weatherbee, and we were so on the nineteenth day of
October last. Upon the said nineteenth day of October, between
the hours of three and four of the clock, I proceeded to the St.
Albans bank, in the town of St. Albans aforesaid, for the purpose
of paying a note that fell due in the bank on that day, by our firm ;
the amount of the note was five hundred dollars. “I had with me
three hundred and ninety-three dollars in current money of the
United States, and an account due by the President, to complete
the payment of the difference. When I arrived at the bank door,
I found it closed. [ knocked at the door and it was immediately
opened by a person who was a stranger to me. I went into the
bank, and the door was closed immediately by the same person
who had opened it, and who had in his hand a revolver, and with
the other hand he caught me by the shoulder, and pushed me
along to the desk, and made the remark chat the man of the bank
was in the other room. As [ approached the desk, I was met by
another stranger, who had also a revolver in his hand. ‘The money
for the payment of the note I carried in my left hand, and upon
this latter stranger secing it, he said I will take that money.
Before he took it, Mr. Bishop, & witness examined in this matter,
and who was in an adjoining room, said, ‘* Breck, we are caught; you
had better give it up,” remarking at the same tie, that they had
robbed the bank of all the money it contained. One of the party
thereupon said that they had done so. I only noticed two armed
strangers in the bank, the one who opened the door for me, and
the one who met re at the desk as aforesaid. After these remarks,
I gave to one of the armed men the money I had with me, amount-
ing to three hundred and ninety-three dollars. I gave up this
money because I was put in fear of my life if I refused to do so.
The man who stood at the desk, and who took the money from me,
before taking it, presented a revolver at me, which almost touched
my person. I donot recollect that he said he would blow my brains
out ; I believed he would from his appearance, and from the remark
Mr. Bishop made, and from the revolver being presented at me.
This man, after he said he would take my money, said that I was
under arrest, and tunt they were Confederate soldiers. I then
asked them if they did not respect private property ; they said they
did not, and asked me if Generals Sherman and Sheridan respected
private property. This money which was so taken from me
belonged to myself and my co-partner. ‘These armed men were
140
dressed in civilians’ clothes. I did not tell them that the money I
held in my hand was private property, nor did I tell them that it
was not private property. After taking this money from me, one
of the armed men still kept his hand on my shoulder, and aided me
into the Director’s room, that is, he shoved me in. This armed
man sail that if I attempted to escape, or give any alarm, he
would shoot me. ‘This was the man that took my money from me,
his words were that he would blow my brains out; in consequence
of this threat, I remained quiet. I was kept in this state for
about ten srinitibe, While L was there, another knock came at the
door. ‘The door was opened. A young clerk, or telegraph operator
of Mr. Weeks’ came in. Ife had also a package of money in his
hand, he made the remark that it belonged to Mr. Weeks, and the
same stranger, or armed man that took my money, took his money
aso. This young man was anxious to get away, and the armed man
said, that he should not Ict the telegr iph operator go, and that ifhe
had found him in the telegraph oflice, he would have shot him on
the Spot. They compelled him to sit on the bed that was in the
room, giving him to understand that if he did not, the »y would shoot
him ; and he, i in consequence, remi ained. They rem: arked that they
had seventy-five men in town all armed, and that the tewn was in
their possession, and that ney. intended to burn the depdt, public
buildings, and the Goveror’s house. Soon after, I heard shots
fired below the bank, that is, south of it. Previous to the departure
from the bank of the said armed men, one of them soon atter went
out, and the other remarked that if we were seen outside the bank,
we should be shot. He then went out. Mar Bisuop then went out,
and T soon after followed, and then saw a party of horsemen riding
north. ‘The prisoner, who gives lus name as Squire Turner Teavis,
I recognize as one of the two armed men who took my money in the
way I “have already stated, in the St. Albans bank, at the town of
st. Albans aforesaid, upon the nineteenth day of October last past.
Cross-erainined on behalf of the Confederate States. —L[ know
that there is a paper called the New York Ierald, published in the
city of New York. I believe it is one of the papers in which
Government orders and proclamations are published in the city of
New York. General Dix is in command of the department of the
Kast, in which the State of Vermont is. I have scen a proclama-
tion published in the said paper previous to this date, and I presume
that the proclamation in the number of the New York Herald of
the fifteenth instant, is a copy of the proclamation in question. It
appears in the first page of the said paper, and is stated the general
order, number ninety-seven. I do not know that there is an "official
paper in the United States. It is the practice there to publish
proclamations and orders in the leading papers. Being asked
ney I
hat it
, one
dd me
rmed
he
nme,
lence
o for
it the
‘ator
n his
l the
oney
man
if he
m on
. the
shoot
they
is in
tblie
hots
ture
vent
ink,
out,
lng
vis,
the
nh of
ast.
LOW
the
hich
y of
the
na-
me
of
It
ral
ial
ish
ed
141
whether it was not owing partially to what Mr. Bishop said to me
in the bank that you gave up the money to the raiders that asked
for it, I say that What Mr, Bishop said to me led me to believe
that. they were robbers, and that they would shoot me if I did not
give it. I say that the prisoner, Teavis, is the man that took my
money as aforesaid. I know that money was taken out of the
other banks at the town of St. Albans on that ds iy by other raiders
or robbers. I style them robbers. I know that there was thrown
on the sign of the store next to mine a bottle of what is called
Creek fire. They told me that they were Confederate soldiers
acting under General FE: arly, and that [was under arrest. ‘The
money taken from me consisted of partially St. Albans bank bills,
and the rest of greenbacks and other banks; and further I say
not, and have signed, the foregoing deposition having been taken
and read over in the presence of the prisoners.
(Signed), SAMUEL BRECK.
Sworn to before me, at Montreal, )
this twenty-eighth day of De:
cember, 18-4.
(Signed), J. Smitir, J.S.C.
George Edwin Fairchild, of the town of St. Albans, in the State
of Vermont, one of the United States of America, clerk, and now
in the city of Montreal, upon his oath saith.—I was living in the
town of St. Albans aforesaid on the said nineteenth day of October
last past. On that day I went out on to the street in St. Albans,
between three and four in the afternoon, and sawa party of armed men
on horseback in the street. [was some ten or fifteen rods above
the St. Albans bank, which is on Main street, of the said town ;
directly after I went out, one of these armed men went up toa
ventleman I was conversing with, named Nettleton, and demanded
from him his hat, saying, that he wished to get it for one of his
comrades. Mr. Nettleton hesitated a moment, and then remarked,
that he could not lose his hat ; he then 1nade a second demand for
it, saying at the same time that he would shoot him through if he
refused, and the same time this man on horseback drew two revol-
vers, and cocked them, and pointed them at said Nettleton ; said
Nettleton put his hand under his overcoat as if with the intention
of drawing fire-arms; at this, the man on horseback wished to
know if he had any arms about him, and to show h'm the inside of
his coat, immediately threatening again to shoot him. At this time
the man that was in want of the hat, rode up and said to his com-
rade not to parley, but to shoot the damned cuss. At this time
there was a cry for help down the street, in the vicinity of the
banks ; these two men wheeled their horses about, and rode off in
142
the direction of the ery for help. At the time the second man rode
up as above stated, I remarked to Mr. Nettleton not to stand such
an insult. At this the man that first rode up, pointed two re-
volvers at me, and wished to know if I had any arms about me,
and to show the inside of my coat, or he would shoot me through.
I remarked that I hoped he would not shoot an unprotected citizen,
opening my coat to convince him that [was unarmed. After these
men had ridden down the street in the direction of the cry for help,
most of the party rode back up the street nearly opposite to where
i was standing, and an order was given from some one of the party
to fall in line, which they did as well as they could, and headed
down the strect, in which direction Captain Conger was coming
with a few others. I saw Captain Conger with a gun, which he
was apparently trying to fire at them, Dut the gun did not go off.
These that had formed in line and headed down the street, all fired
two or three shots each at said Captain Conger and his comrades.
About this time there appeared to be one of the robbers who was
not mounted ; he called upon the Captain, as I supposed, to furnish
him with a horse. Upon this the man called upon rode up in front
of Fuller’s livery stables, and demanded Mr. Fuller’s saddler to lead
down a horse that had just been rode into town by a Mr. Smith,
and was then standing in front of the livery stables. The man
hesitated at first; and the man who rode up, and demanded the
horse. told him that if he did not comply he would shoot him.
Upon this the saddler led the horse down. ‘This man had a revolver
in his hand which was cocked, and which he presented at the saddler.
The armed man rode by the side of the said saddler, keeping the
revolver pointed at him most of the time until he came nearly
opposite to where I was standing, and where the man in want of a
horse was standing; this man mounted the horse and rode off with
the party. At this time there was an order given by some one of
the armed party to throw Greek fire upon a building opposite
where I was standing; by this time the horses became unmanage-
able from fright probably, and the armed party fired several shots
at citizens in different directions. Some of the shots striking very
near where I was standing, one struck the corner of the store about
six feet from where I stood, and I saw the ball which was
picked up by a gentleman standing near; they then rode out of
town irregularly, “and that is the last I saw of them. ‘This armed
party appeared to be acting in concert from the time I first saw
them until they rode off ; they were all dressed in citizens’ clothes,
and I saw nothing about them to indicate that they were soldiers.
The prisoners, Bennett H. Young, and Charles Moore Swager, I
recognize as being two of the armed party that I have referred to.
All that I have related took place on Main street, in the town of
St. Albans aforesaid, and in the immediate vicinity of the banks.
rode
such
O re-
me,
ugh.
izen,
hese
elp,
here
arty
ded
ning
1 he
off.
ired
des.
was
nish
"ont
ead
ith,
1an
the
im.
145
Cross-eramined on behalf of the Confederate States. —I did not
see Greek fire thrown, but I heard the order given to do so on Mr.
Brainheard’s store. There were other buildings set fire to that
day,—the American hotel, and Victor Atwood’s hardware store.
When Captain Conger came up with the gun, there were four or
five people with him, and by that time the citizens were beginning
to collect in the street. There are about three thousand inhabitants
in St. Albans. At that time the armed party had been in the
town about half an hour. By this time a great number of the in-
habitants had collected, but I cannot say that the greater portion,
as precautions were taken to prevent this, by the armed party.
At that time they had several of the principal citizens prisoners on
the green. Up to this time they had pretty much the control of
the village, and did much what they hada mind to. Ido not know
that any one was shot by the volleys I saw fired. I know that
there was a soldier of the United States army in St. Albans that
day ; he was in uniform. Te was not taken prisoner by the armed
party ; and further I say not, and have signed, the foregoing depo-
sition having been taken and read in the presence of the prisoners.
(Signed) GHO. EK. FAIRCHILD.
Sworn to before me, at Montreal,
this twenty-eighth day of De-
cember, 1864.
(Signed) J. Smirn, J.8.C.
Edward A. Sowles, of the town of St. Albans, in the State of
Vermont, one of the United States of America, attorney and coun-
sel-at-law, now in the city of Montreal, upon his oath saith :—I
am an attorney and counsel-at-law, practicing as such in Vermont
aforesaid, and have practiced as such since the year eighteen hun-
dred and fifty-eight. I have been present and have heard all the
evidence in this case.
Question.—From the facts deposed to in your presence and
hearing in this case by Cyrus Newton Bishop, Samuel Breck,
Joseph T. Bettersworth, and George KE. Fairchild, what criminal
offence, in your opinion, was committed, according to the laws of
the said State of Vermont in force on the said nineteenth day of
October last, as therein disclosed by the said witnesses ?
(Objected to by Mr. Kerr. Objection maintained. )
Question.—Was robbery a crime by the laws of the said State
of Vermont i in force on the said nineteenth day of October last ?
Answer.—It was, and still is.
Question.—Did the facts disclosed in the evidence of the wit-
nesses above named, as given in this cause in your presence and
hearing, amount to and constitute the crime of robbery, as known
REST ee
ee wag = = Sa zs —
144
and recognized by the laws of the said State of Vermont in force
on the said nineteenth day of October last 7
Answer.-—They did, and do now. —
QVuestion.—According to the laws of the said State of Vermont
in force on the said nineteenth day of October last, would the facts
disclosed in the said evidence bring home the charge of robbery
against all of the prisoners above named ?
Answer.—It would. The volume now produced contains the
general Sits now in force in the said State of Vermont, and
which were also in force on the said nineteenth day of October last.
T am acquainted with the seal of the said State, and with the sig-
natures of the Governor and Secretary of the said State, and I
declare that the seal affixed to the certificate written on the leaf
immediately after the page seven hundred and ninety, and between
the Acts and the index, is the seal of the said State, and the sig-
nature, “J. Gregory Smith,” i is the signature of the Governor of
the said State, and the signature, ‘*G. W. Bailey, jun.,” is the
signature of the Secretary of State of the said State of Vermont.
Cross-eramined on behalf of the Confederate States.—The of-
fence committed by the prisoners would be cognizable by the Courts
of the State Courts of the Mate of Vermont. The United States
Courts for the District of Vermout would have no primary jurisdic-
tion over this offence. The State of Vermont, therefore, has
exclusive primary jurisdiction of the crime of robbery committed in
that State, as I understand it. Texas, California, Kansas, I think,
and Minnesota, have been admitted into the Union since the year
eighteen hundred and forty-two. I know that an Act of Congress
was passed on the seventeenth of July, eighteen hundred and sixty-
two, chapter one hundred and ninety- five, entitled an Act to sup-
press insurrection, and to punish treason and rebellion, to seize and
confiscate the property of rebels, and. for other purposes that Act
shows for itself; that any person engaged in war, or committing
the crime of treason against the said United States, is liable to
imprisonment and fine, and the property of that individual is liable
to confiscation to satisfy the fine, both real and personal property. I
ee for explanation of the said Act to the copy of the Act printed
in Lawrence Wheaton on International Law,” pages 600, GOL,
fd 602, which I have no doubt is a true copy.
Question.—In your opinion, should a detachment of United
States soldiers, under the command of an officer in your army, do
like acts to those charged against the prisoners, your said soldiers
and officers being then in Georgia, would they be guilty of robbery ?
(Objected to by Mr. Devlin. Objection overruled.)
Answer.—I think not. (reorgia is a State in rebellion against
the constituted authorities of the United States. War is going on
force
‘mont
facts
bbery
s the
, and
- last.
e slg
nd I
e leaf
ween
e sig-
ior of
s the
ont.
1e of-
‘ourts
states
isdic-
, has
ed in
hink,
year
ress
ixty-
sup-
and
Act
tting
le to
rable
l
nted
O01,
ited
, do
liers
ry ¢
inst
on
145
now in the State of Georgia. The Federal and so-called Confed-
erate armies are now in the State of Gecrgia, and that is the
battle-ground, or part of the battle-ground. The State of Vermont
is not in rebellion against the authorities of the United States, but
is a loyal State. Its citizens are not committing acts of treason.
Many of those of Georgia are so dog. The two cases are not
analogous. I consider the act of the prisoners as an act of robbery.
I do not consider it an act of treason against the State of Vermont.
Question.—Do you consider the conduct of the prisoners, and
the other parties, at the town of St. Albans, on the nineteenth of
October last, taking all their acts and declarations together, as
treason against the United States ?
(Objected to by Mr. Devlin. Objection overruled.)
Answer.—I can only answer that question by giving the defini-
tion of treason, as given by the Constitution of the United States,
that is to say, “Treason against the United States shall consist
only in levying war against them, or in adhering to their enemies,”
&c., as will be found by reference to page eleven of the compiled
Statutes of the State of Vermont.
Question.—Do the acts above referred to, and declarations,
amount to a levying of war against the United States ?
Answer.—That is a matter of opinion. In my opinion, they do
not.
Question.—Do the said acts and declarations amount to an ad-
herence to the enemies of the United States, giving them aid and
comfort ?
Answer.—That question, with other similar questions, may not
have been settled by the Courts of the State of Vermont, and I
should prefer having them settled by those Courts before giving an
opinion. Iam aware that Judge Nelson is a Judge of the Su-
preme Court of the United States. I think Judge Shipman is
also. I have seen the work called “ The Rebellion Record,”
published by G. P. Putnam, and I have seen it alluded to fre-
quently in the papers, and is apparently the same work which was
read, or portions of which were read, in Court as evidence, on the
trial of the officers and crew of schooner “ Savannah.’’ In the
Courts of Vermont I have seen like works excluded as evidence ;
that is, evidence in and of themselves. I know General Phelps,
who at one time commanded at New Orleans; that is, I know him
by reputation, and have seen him. He is from Vermont.
Question.—In your opinion, Breck having paid the amount of
money he had at the time to a person in charge of the bank, at the
request, or by the direction of the cashier, is he still responsible
for the said amount to the bank ?
K
146
Answer.—Having given up the money, under the circumstances,
not to an agent of the bank, he would be liable to the bank. And
further I say not, and have signed, the foregoing depositions hav-
ing been taken and read in the presence of the prisoners.
(Signed) EDWARD A. SOWLES.
Sworn to before me, at Montreal, this )
twenty-ninth day of December, 1864. {
(Signed) J. SMITH,
J.8.C.
Mr. Bethune.—'This is our last witness.
Mr. Kerr.—I have a point to submit as to the jurisdiction of the
Court. Butas I was not aware last evening that the counsel for
the prosecution would have finished so soon, I shall be ready to-
morrow morning with my argument as to the jurisdiction.
Friday, 80th Dec., 1864.
Mr Kerr for the prisoners submitted :
1. That the Province of Canada was but a corporation with
powers limited and defined by Imp. Act, 3rd and 4th Vie., cap. 35,
the third clause of which was in the following terms.
From and after the re-union of the said two Provinces, there shall
be within the Province of Canada one Legislative Council and one
Assembly, to be severally constituted and composed in the manner
hereinafter prescribed, which shall be called “The Legislative
Council and Assembly of Canada; and within the Province of
Canada, Her Majesty shall have power, by and with the advice
and consent of the said Legislative Council and Assembly, to make
laws for the peace, welfare aud good government of the Province
of Canada, such laws not being repugnant to this Act, or to such:
parts of the said Act, passed in the thirty-first year of the Reign of
His said late Majesty, a3 are not hereby repealed, or to any Act
of Parliament made or to be made, and not hereby repealed, which
does or shall, by express enactment or by necessary intendment,
extend to the Provinces of Upper and Lower Canada, or to either
of them, or to the Province of Canada, and that all such laws being
passed by the said Legislative Council and Assembly, and assented
to by Her Majesty, or assented to in Her Majesty’s name by the
Governor of the Province of Canada, shall be valid and binding to
all intents and purposes within the Province of Canada.
2. The conditions precedent then to the validity of Provincial
Statutes, were : first, that they should be for the peace, welfare and
good government of the Province ; second, that they should not be
repugnant to the provisions of any Imp. Act then in force, or which
thereafter might be passed.
3. By the 10th article of the treaty of 1842, between Great
with
1. BD,
shall :
l one i
nner
ative
ce of
vice
ke
rince
such:
m of
Act
hich
147
Britain and the United States, it was provided that extradition of
criminals in certain cases should be made, and the powers contract-
ing pledged themselves to vest jurisdiction in their Judges and their
Magistrates respectively.
4. The Imp. Act, 6th and 7th Vic., cap. 76, was then passed for
the purpose of giving effect to the treaty ; and the Judges and other
Magistrates in Canada, were thereby invested with the power of
issuing warrants to apprehend and immediately upon the issue of
the Governor General’s warrant giving information that a requi-
sition for extradition had been made.
5. Previous to the passing of the bth and 7th Vic., cap 7b, no
Judge or Magistrate had a right to issue his warrant to apprehend a
foreigner for a crime committed in the United States.
6. By the 5th Section of the 6th and 7th Vic., cap. 76, it was
provided ; ‘ that if by any law or ordinance thereafter made by the
Local Legislature of any British colony or possession abroad, pro-
vision shall be made for carrying into complete effect within such
colony or possession, the objects of the said Act by the substitution
of some other enactment in lieu thereof, then Her Majesty might
with the advice of Her Privy Council (if to Her Majesty in
Council it seems meet but not otherwise) suspend within any such
colony or possession, the operation of the said act of the Imp. Par-
liament, so long as such substituted enactment continues in force
there, and no longer.”’
7. The 12th Vic., cap. 19, was passed by the Provincial Parlia-
ment of Canada, under and by virtue of the permission and power
given in the said Sth Section of the 6th and 7th Vic., cap. 76; and
in the early part of 1850, Her Majesty by order in Council sus-
pended the operation of the Imp. Act in Canada, so long as the
said 12th Vic., cap. 19, should be in force and no longer.
8. By the 12th Vic., cap. 19, the necessity for the Governor’s
warrant preceding the issue of a warrant by a judge or magistrate,
was done away with, and any one of the Judges or Justices of the
Peace throughout the Province, was authorized to issue such war-
rant to examine witnesses and upon complaint under oath or affir-
mation being made, the words and spirit of the treaty being therein
carefully preserved.
9. By the Sth clause of the 12th Vic., (the enactment being
composed of five clauses only) it was provided that “this Act
shall continue in force during the continuance of the tenth article
of the said treaty, and no longer.”
10. Under and by virtue then of the 5th clause of the 6th and 7th
Vic., cap. 76, and the order in Council of Her Majesty, the 12th
Vic., cap. 19, became and was the colonial enactment substituted
in Canada, for that Imp. Act, and the operation of the Imp. Act
148
was suspended in the Province, 3o long as that enactment (the 12th
Vic., cap. 19), remained in force and no longer—the fifth clause of
the Statute 12th Vic., must also be regarded as a kind of pledge
quoad the duration of the act itself.
11. By the Provincial Act, 22nd Vic., cap. 29,. it was pro-
vided ‘ that from the day mentioned in the proclamation provided
for by section four, all the enactments in the several Acts and parts
of Acts in such amended Schedule A mentioned as repealed, shall
stand and be repealed ; by the 9th Section, it was provided “ that
if the provisions of the Consolidated Statutes are not the same as
those of the repealed acts qguwoad transactions after those Consoli-
dated Statutes come into effect, the provisions of the Consolidated
Statute shall prevail.”
12. In Schedule A (Con. Stat. of Canada, p. 1203) appears as
repealed 12th Vic., cap. 19.
13. The Governor General issued his proclamation on the 9th
Nov., 1859, fixing the 5th of Dec. as the day on which the Conso-
lidated Statutes of Canada, should come into force under the 4th
Section, 22nd Vic., cap. 29.
14. The 22nd Vic., cap. 89, (Consolidated Statutes of Canada)
was a re-enactment of the 12th Vic., cap. 19.
15. By the Provincial Statute, 24th Vic., cap. 6, the first three
clauses of the 22nd Vic., cap. 89, were repealed—and three other
clauses substituted therefor. By the 24th Vic., jurisdiction in cases
of extradition was taken away from the Justices of the Peace
throughout the Province, and vested in certain other officials—the
words in the first section of the 22nd Vic., cap. 89, ‘ with having
committed within the jurisdiction of the United States of America,
or of any of such States, any of the crimes, Xc.,’’ were changed to
‘with having committed within the jurisdiction of the United
States of America, any of the crimes, &c.,” and other changes
were made relating to the sufficiency of the evidence.
16. No order of Her Majesty in Council suspending the opera-
tion of the Imp. Act during the continuance in force of the 24th
Vic., cap. 6, was ever made.
17. By the repealing clause of the 24th Vic., cap. 6, three of the
five clauses composing the 22nd Vic., cap. 89, (the re-enactment
of the 12th Vic., cap. 19,) were repealed, leaving in fact but one
clause, which was similar to one of the clauses of the Imp. Act, 6th
and 7th Vic., cap. 76, so that the enactment substituted (the whole
of the Act 12th Vic., cap. 19) had ceased to be in force, and the
Imp. Act 6th and 7th Vic., cap. 76, under its own provisions and
Her Majesty’s order in Council, on the assent by the Governor
General to the 24th Vic., cap. 6, revised.
Mr. Bethune contended that our legislature had full power to
legislate upon this subject irrespective of any treaty or imperial
12th
se of
ledge
pro-
nided
parts
shall
‘ that
ne as
nsoli-
lated
irs as
e 9th
onso-
e 4th
ada)
three
other
Cases
Peace
the
hving
rica,
ed to
nited
nges
pera-
24th
f the
ment
one
, Sth
rhole
the
and
rnor
br to
rial
149
statute bearing on the point. He had referred to the Union Act as
demonstrating the power of our legislature, which he had thought
proper to designate a mere cor poration. The wor ding of the act
was this :—* ‘That this legislature shall have power to make laws
for the peace, welfare and good government of the Province of
Canada.”’ This has the largest possible form of expression on the
subject. To show this power was inherent in our legislature, he
referred to what the legislature of Upper Canada did, before the
Union, on this subject, and cited from the Revised Statutes of
Upper Canada, p. 592. But, first, the question of extradition had
nothing to do with treaties. A treaty was a mutual compact
between two nations, and, of course, required the interposition of
the Crown and the Crown alone. In a mere question of extradi-
tion the legislature of this province was supreme. In 18383, the
legislature of Upper Canada, long before any treaty, legislated
upon this subject, and in a broader sense than that of the treaty.
The act set forth that, whereas, it was expedient to provide by law
for the apprehending and delivering up of felons and malefactors
who, having committed crimes in foreign countries have sought, or
may, hereafter, seek an asylum in this province it was enacted not
only that persons committing such crimes as murder and robbery,
arson, &c., might be given up, but those guilty of “larceny or
other crimes.’ Were we to be told this was an unconstitutional
act—an act in force ever since 1833% It stands on our statutes
ratified by the Crown and recognised as law. In Wheaton’s Inter-
national law, p. 241, it is recorded, that it was stated by the British
Minister at the time of the signature of the treaty of 1842, that the
Rendition Treaty could have no effect in the British dominions in
Europe, till provisions were passed to give it effect; but that in
Canada the treaty could have immediate effect, because in Upper
Canada there existed a provision of law touching this very question.
The wording of the old Quebee Act giving the legislature of Upper
Canada the most ample power to ‘legislate on every subject affect-
ing the peace, welfare and good government of the Province,”
the legislature passing its statute in accordance with that power.
The statute was recognised by Great Britain through its ambassador
negotiating the treaty. The Imperial Act respecting this treaty
afforded a confirmation of this view. That Act, in referring to our
power on this subject did not refer to any power as being ‘thereby
given us, but to a power already existing at the passing of the said
Imperial Act. The wording of that Act took it for granted that
such a power really existed ‘with us, and it provided that it should
be competent to Her Majesty to suspend the Imperial Act—not
that it should be obligatory upon her to do so. It must be borne
in mind that the Crown was under treaty of obligations with an-
+ SNE Ee aes AST oe
- Rae oss
eae
i
j
{
|
ead
NE. es
ac
menus
x i RE AEP
-
ie
. Rows
===
alt SE:
150
other nation, and that it was necessary for the Crown, in good faith,
to take care that all our obligations were carried out faithfully, If
the legislature of this colony did not legislate sufficiently 1 in the
matter, the Imperial Parliament could always step in and supply
all deficiency so as to answer fully the purposes of the treaty. The
Imperial Legislature reserved to itself the right to see the colonial
enactment before it would suspend its own enactment. ‘There was
nothing illegal or improper in the Provincial and Imperial enact-
ments going on together ; on the contrary, they contemplated such
a state of things. We passed an act in 1840, but it did not require
any sanction from Her Majesty in order to make it law. As the
act created a machinery of our own, for the sake of convenience,
our legislature left it to Her Majesty to indicate a day upon which
this treaty should come in force, in order that if she thought pro-
per to suspend the operation of the Imperial Statute, there should
be no confusion, and that we should always, or in the meantime
have some law in operation. What was the language of Iler
Majesty, as appeared by the Canada Gazette? ‘ By virtue of
the authority vested in me by the Provincial Act”—the act
of 1849 passed by our legislature. This was not surely the
authority of a mere Corporation. Her Majesty’s power of sus-
pension existed as long only as our statute existed. As to the argu-
ment that the Imperial Act revived on the repeal of the statute
of 1849, the clause Mr. Kerr relied on was the Sth of the Act,
respecting the Consolidated Statute of Canada, 22nd Vic., chapter
29, The clause provided that on and after such day as that on
which the Provincial Act should come into force and effect, by
direction of the Consolidated Statutes of Canada, ete., all the
enactments and parts of enactments mentioned in a certain sche-
dule should stand and be repealed, ‘‘ save only as hereinafter
provided.” Now, as to the argument that because the 12th Vic.,
chapter 19, was embodied in that schedule that it was therefore
repealed, and that when the Act 12th Vic., was embodied in the
Consolidated Statutes, a new statute was created, it is to be noted,
in connection with the words ‘ save only as hereinafter provided.”
That the 8th section of the Consolidated Statutes enacted that said
Consolidated Statutes should not be held to operate as a new law,
‘“‘ but as a consolidation, and as declaratory of the laws contained
in the acts so repealed, and for which the Consolidated Acts
were substituted.” Ifer Majesty had no power to do any thing
more than deal with the whole Act. She had declared that
the Imperial Act would be suspended as long as the Provincial
continued in force, and no longer. But was it to be argued
that when an act was amended by the legislature it was con-
sequently repealed. ‘The Act of 1849 still exists on our Statute
Book, as amended, but amended in a very small particular. Upon
faith,
; If
1 the
ipply
The
lonial
» was
nact-
such
juire
3 the
nee,
rhich
pro-
ould
time
Iler
ie of
act
the
sus-
rgu-
tute
ct,
pter
on
by
the
he-
fter
ic,
ore
the
ed,
} Pia
aid
151
the question as to the jurisdiction of our Courts it was amended in
only one particular as to the powers of justices of the peace in the
matter. In the statute of 1861, we had merely approached
nearer to the Imperial Act, restricting the power given under that
law, by taking it away from mere justices of the peace, and giving
it in lieu to judges of sessivns, and stipendiary magistrates. There
could be no revival of the Imperial Act unless the whole Act of
1849 had been repealed by us, which had not taken place, it being
still in the Statute Book, and but slightly amended. ier Majesty
giving such a sanction, required no special ail or order in Council
to be proclaimed in the Gazette to give the statute life. Our
legislature in the Act of 1849 merely gave the Queen power to fix
a day on which our Act should come into force so that there might
be no clashing of the two Acts, but in the Statute of 1861 no
requirement of the kind was introduced. Was it to be said that
when ¢”e legislature had power to enact it had no power to amend
or repeal laws? Our Act of 1851 did not require any confirmation
at Her Majesty’s hands. She had power to reserve it, but did not
do so. The only other power she had as regards that act, was to
disallow it; but instead of doing so, Her Majesty treating it as an
ordinary act by an order made in Eler Privy Council declared that
she left it to its operation. Ie denied His Honor had any power
to question the constitutionality of the Act, under which he was sit-
ting in this case. ‘The law was im the Statute Book, and the Judge
had no power to say the legislature of Canada had no right to pass
a law on this subject. Our legislature had the most complete
power and control over this question and required no treaty even
in the first instance. It was, then, out of the Court’s power to set
aside an act of Parliament which gave it jurisdiction in ‘this matter.
It could not be maintained that even if the Imperial Act had
revived, the two could not exist and operate together. Even if the
Imperial Statute has revived, enacting that the Governor General
might sign a warrant of arre est in such a case as this, was it to be
understood that no other official could do anything towarcs securing
the arrest of accused parties in such a matter ?
Justice Smith delivered the following judgment on Saturday,
7th January, 1865:
The examination of the witnesses in the case of the robbery of
Brett, having been concluded, Mr. Kerr, on behalf of the prisoner,
raised a preliminary objection, on the allegation of the total ab-
sence of jurisdiction on the part of the examining Judge, on the
ground that the arrest of the prisoner was illegal, the warrant of
arrest not having been preceded by a warrant under the hand and
seal of the Governor General, signifying that a requisition had
been made by the authority of the United States for the delivery
of the offender.
Ne rrr ert wre aetna es —
152
“That my warrant having been issued without such authority,
it was altogether illegal, null, and void, and that the prisoner was
entitled to his discharge.”
‘The argument was, that there was no law in force in this
Province, under which such warrant could legally issue, except
the Imperial Statute 6th and 7th Victoria, chapter 76 ; and that
such law imperatively required the authority of the Governor
General, before such arrest could be made, and that without such
authority the warrant of arrest was altogether illegal.
‘In support of this argument, the Counsel for the prisoner
stated several propositions.
1st. That the arrest and delivering up of persons accused of
crimes, was entirely within the scope “of Imperial authority, and
beyond the jurisdiction of a Colonial Executive.
2nd. ‘That there was no provision by common law, or by the
comity of nations, to effect this object.
8rd. That this matter is regulated entirely by treaty, between
independent nations, and that the only treaty which regulated this
subject between Great Britain and the United States of America,
is the Ashburton ‘Treaty.
Let us assume then, for the sake of argument, that the three
propositions above stated are true, and that the provisions of the
Ashburton Treaty can alone settle and determine the rights of both
nations, on the subject,—and that the starting point in the settle-
ment of the question is that treaty.
The Ashburton Treaty was finally settled by the two Govern-
ments on the 30th day of October, 1842, by the exchange of
Ratifications at London.
By the tenth article of this treaty, it was agreed, ‘‘ That Her
Majesty and the said United States should, upon mutual requisitions
by them or their ministers, officers, or authorities, respectively
made, deliver up to justice all persons, who being charged ‘vith the
crime of murder, or assault with intent to commit murder. or piracy,
or arson, or robbery, or forgery, or the utterance of forged paper,
committed within the jur isdiction of either of the high contracting
parties, should seek an asylum or should be found within the terri-
tory of the other.”
Provided that this should only be done, upon such evidence of
criminality, as, according to the laws of the place where the fugi-
tive, or person so charged should be found, would justify his
apprehension and commitment for trial, if the crime or offence had
been there committed. And that the respective Judges and other
Magistrates of the two Governments should have power, jurisdiction
and authority, upon complaint made under oath, to issue a warrant
for the apprehension of the fugitive or person so charged, so that
lority,
r was
1 this
xcept
| that
ernor
; such
isoner
ed of
, and
y the
ween
1 this
rica,
three
f the
both
ettle-
ern-
re of
Her
ions
vely
the
acy,
per,
ting
brri-
e of
gi-
his
1ad
er
ion
ant
at
153
he might be brought before such Judges or other Magistrates
respectively, to the end that the evidence of criminality might be
heard and considered ; and that, if on such hearing the evidence
should be deemed sufficient to sustain the charge, it should be the
duty of the examining Judge or Magistrate to certify the same,
&e., &e., &e.
An Act was afterwards passed in the Imperial Parliament to
give effect to the treaty in the 6th and 7th years of Her Majesty’s
reign; and by one of the clauses of that Act,
It was provided, ‘ That before the arrest of any such offender,
a warrant shall issue under the hand ind seal of the Governor
General, or person administering the government, to signify that
such an application had been made by the United States for the
delivery of such offender, and to require al] Justices of the Peace
and other Magistrates and officers of justice to govern themselves
accordingly.
By the fifth section of the said Imperial Act, it is provided, that
if by any law or ordonnance, to be thereafter made by the local
Legislature of any British colony or possession abroad, provision
shall be made for carrying into complete effect within such colony
or possession the objects of the said Act (that is) for giving effect
to a treaty between Her Majesty and the United States of Amer-
ica, for the apprehension of certain offenders, by the substitution
of some other enactment in lieu thereof, then Her Majesty may, with
the advice of Her Privy Council Cif to Her Majesty in Council
it seems meet), suspend within any such colony or possession the
operation of the said Act of the Imperial Parliament, so long as
such substituted enactment continues in force therein, and no longer.
Under the authority of the fitth section of this Act, the Parlia-
ment of Canada passed an Act intituled “ An Act respecting the
Treaty between Her Majesty aad the United States of America
for the apprehension and surrender of certain offenders.” being
the 12th Victoria, chapter 19.
By this Act it was stated in the preamble, ‘that the provisions
of the Imperial Statute were found to be inconvenient in this Pro-
vince in practice, particularly in that part which required the
authority of the Governor General before any arrest of a criminal
could be made ; and whereas, by the fifth section of this Imperial
Act, it is enacted that if by any law or ordonnance, to be thereafter
made by the local legislature of any British colony or possession,
provision shall be made for carrying into complete effect the objects
of the said Act, by the substitution of some other enactment in lieu
thereof, Her Majesty might, with the consent of Her Privy Council,
if to Her Majesty in Council it seems meet, suspend the operation
of the Imperial Statute so long as such substituted enactment con-
|
\
W
154
tinue in force, and no longer ;’”? and then follows the enactments
of the bill doing away with the necessit7 of the Governor General’s
warrant.
By the 5th clause of the said Act it was provided that the Act
12th Victoria, chapter 19, shall come into force upon the day to be
appointed for that purpose, in any proclamation to be issued by the
CGrovernor General, or person administering the Government of the
Province, for the purpose of promulgating any order of ITer
Majesty, with the advice of Her Privy Council, suspending the
operation of the Imperial Act hereinbefore cited, within this Pro-
vince, and not before; and this Act shall continue in foree during
the continuation of the 10th Article of the Province, and no longer.
This proclamation was made by the Governor General on “the
28th March, 1850, and was published i in the Canada Gazette at
that time.
The order in Council required by the fifth clause of the 6th and
7th Victoria, Imperial Act was passed, and the operation and
authority of the Imperial Statute 6th and Tth Victoria was there-
fore suspended within the limits of this Province, and the 12th
Victoria, chapter 19, became the law of the Province.
The effect, therefore, of the passing of the 12th Victoria, chap-
ter 19, was to carry out more completely the stipulations of the
treaty. By the 10th article of that treaty, jurisdiction was given
to the Judyves and Magistrates mentioned in the treaty. By the
Imperial Act 6th and 7th Victoria, it was enacted that before
these Judges or Magistrates could act under the treaty, an autho-
rity from ‘the Governor General was necessary,—so far as this is
concerned it was a departure from the stipulation of the 10th Arti-
cle. Suppose the 6th and 7th Imperial Statute had enacted that
the warrant by a Judge or Magistrate could not be enforced, except
a previous warrant had been issued under the hand and seal of the
principal Secretary of State, surely it would not be contended that
such an enactment would not have been contrary to the provisions
of the treaty, and that it would have frustrated ‘the very object of
the treaty so far as this country is concerned ; what possible dif-
ference can it make that the name of the Governor General is sub-
stituted for that of the Secretary of State, so far as mere convenience
is concerned? The Governor General, who resides at the distance of
one thousand miles from the Western extremity of the Province,
and the Secretary of State who resides in England, are in a similar
position ; and the preamble of the 12th Victoria, chapter 19, declares
that the pr ovisions of the Imperial Statute have been found incon-
venient in practice in the country, and that it is necessary to
change them.
This Act, so reasonable in that particular, was passed without
objection, and it was not even a reserved Act. It was passed
tments
neral’s
he Act
y to be
by the
of the
f ITer
ng the
is Pro-
during
onger.
on the
ptte at
th and
1 and
there-
12th
chap-
f the
given
y the
efore
utho-
is 18
A rti-
that
cept
f the
that
b10NS
t of
dif-
sub-
nce
e of
nce,
ilar
Ares
on-
to
out
sed
155
by the concurrent action of the three branches of the Legislature
of Canada, and became complete, so soon as the Royal assent
through the Governor General had been given.
But the time for this act to come inte force was left to the
(rovernor General to proclaim, so soon as the 6th and Tth Victoria
(Imperial Act) should have been suspended, and was only neces-
sary for that purpose ; and as it was enacted in the 12th Victoria,
chapter 19, the proclamation announcing the suspension also
became necessary.
But the Act itself was passed as an ordinary act of Parliament,
and passed as the Act itself says by virtue of the authority given to
the Parliament hy the fifth clause of the 6th and 7th V ictoria,
The jurisdiction over the sabtoct matter of the Imperial Act, and
of the treaty itself in so far as the mode of carrying out the provi-
sions of the treaty within the Provinee, is concerned, was given to
this country, and it fell hy the operation of A Imperial Act, under
the ordinar y jurisdiction of th. Canadian Pariiament, as all other
natters of a local nature fell under che jurisdiction of Canada, by
the Union Act itself.
‘The mere tact that the 6th anit 7th Vivtoria wes a scnarate Act,
and provided for its coming into force again, un, the event of this
country not carrying out the provisions of the \ s.hurton Treaty by
ens se nts of its own, does not affeet the Guesuon.
Nhe Union Act gave complete and sii; reme autheriy over all
matters concerning this Province to th: Parliament of Canada.
The Act of 6th and 7th Victoria gave complete jurisdiction to ti
country over the provisions of the Ashburton Treaty, so far as it
related to this country, and to the mode of carrying into effect the
provisions of the treaty itself within the territory of Canada.
‘here was no limitation to this authority bv the Act itself. It was
enacted that the mode of carrying into “effect the treaty should be
regulated by the Provincial Government, and if from the nature
of the treaty itself, it could only come into force by Imperial
authority, the 10th article of the treaty clearly e ‘mbraced the whole
of the dominions of Great coe: and vested in the Judges and
Magistrates of the two ¢ ‘ies all necessary jurisdiction, nd
authority for arresting and exatitinttiz the offenders mentioned
the said treaty. So far as mere jurisdiction is concerned, it was
absolutely given by the iveaty, and the Imperial Act in that respect
confirmed this jursd'caon. The Ashburton Treaty was passed by
the Imperial Govornment for the whole nation, and for that purpose
the Imperial authority was supreme.
By the express provisions of the treaty itself, jurisdiction was
given to the Judges and Magistrates of the Priviice. the consent
to this jurisdiction was given 1 by the Crown: Ist. By the ratifica-
156
tion of the treaty. 2nd. By the legislative action contained in the
provisions of the 6th and 7th Victoria, with the already mentioned
restriction of the Governor General’s warrant; and, 3rd, by the
provisions of the 12th Victoria, chapter 19, expressly doing away
with this restriction ; and so far as the surrender by the country
of persons charged with offences specially pointed out in the treaty,
the jurisdiction was complete. Even if the 6th and 7th Victoria
had never been passed, it is difficult to conceive on what authority
this country could have refused to carry out the provisions of the
Ashburton Treaty.
But it is not necessary for me to pursue this point any further,
as the full and complete jurisdiction was given to this country by
the Act 6th and 7th Victoria, and by ‘2th Victoria, chap. 19, so far
as to the manner of effectually carrying out the provisions of the
treaty is concerned.
I deduce, therefore, from the previous observations :
1st. That supreme authority was given to the Parliament of this
country to effectually carry out the provisions of the Ashburton
Treaty within the limits of our territory, as it thought proper, and
that this authority is to be found in the fifth clause of the 6th and
Tth Victoria, Imperial Act.
2nd. That by the passing of the 12th Victoria, chap. 19, the
mode of carrying out the provisions of the treaty is there pointed
out.
3rd. That so long as the provisions of the 12th Victoria, chap. 19,
remained in force, the provisions of the 6th and 7th Victoria were
suspended in this country.
4th. That the 12th Victoria, chap. 19, having received the Royal
assent, the right to change the mode of procedure pointed out, to
be observed by the 6th and 7th Victoria, and the substitution
therefor of the mode of procedure pointed out by the 12th Victoria,
chap. 19, was an Act clearly within the jurisdiction of this country,
otherwise that Act would never have received the Royal assent.
Sth. That if the mode of procedure can be changed with the
sanction of the Crown, any second change not infringing the provi-
sions of the treaty is also within our jurisdiction, and that the same
authority having sanctioned this change, it is absolutely binding on
all the inhabitants of this country.
The prisoners’ counsel, however, contends that as the 12th Vic-
toria, chap 19, is no longer in existence, that it has been positively
repealed, and that, consequently, the Imperial Act of the 6th and
Tth Victoria again revived, and became law in this Province.
The argument is, that the 12th Victoria, chap. 19, has been
changed by the 24th Victoria, in such a way as to require a second
order in Council, and a second proclamation to give it effect.
ed in the
1entioned
l, by the
ng away
country
le treaty,
Victoria
authority
is of the
- further,
untry by
19, so far
is of the
nt of this
shburton
per, and
6th and
. 19, the
» pointed
1¢
hap. 19,
ria were
1e Royal
out, to
stitution
‘ictoria,
country,
ssent.
vith the
he provi-
he same
ding on
th Vic-
psitively
6th and
e.
s been
h second
t.
Po Ne Ah eo IONE aN
4
157
That as the 12th Victoria, chap. 19, required a Proclamation
and Order in Council to suspend the 6th and 7th Victoria in this
country, so, also the 24th Victoria also required a second Order in
Council again suspending the 6th and 7th Victoria, and a Procla-
mation to that effect.
In answer to this argument, it may be said that the 24th Vic-
toria does not repeal the 12th Victoria, chap. 19 ; it simply sub-
stitutes three new sections, viz.: 1, 2,3, for the 1,2, 3 sections of
the 12th Victoria, chap. 19.
That the change in part of the said Act does not operate in law
as a repeal—See Dwarris, page 534 and 6380.
That the 6th and 7th Victoria does not speak of a repeal or
change at all, but simply states that in the event of this Parliament
making provision for the carrying into complete effect within this
colony the objects of the said Act, by the substitution of some other
enactment in lieu therefor, that is, in lieu of the enactments con-
tained in the 6th and 7th Victoria, then the operation of the 6th
and 7th Victoria may be suspended.
The 12th Victoria was passed substituting new enactments for
those of the 6th and 7th Victoria, and received the Royal assent,
and the operation of the 6th and 7th Victoria, in this country was
suspended, and remained suspended so long as such substituted
enactments remain in force.
The moment then, that the colonial amendments were substituted,
for the Imperial provisions contained in the 6th and 7th Victoria,
the colonial law necessarily superseded the Imperial authority.
The Imperial Act 6th and 7th Victoria does not restrain the
Provincial Parliament in any way in the mode of carrying out the
provisions of that Act, viz.: to carry into complete effect the Ash-
burton Treaty ; and the same Act gave to the Colonial Parliament
the same authority in this country that it had itself, and delegated
to the Canadian Parliament the duty it had itself assumed towards
the United States within the Province of Canada, viz.: to carry
out the stipulations of the Ashburton Treaty, and it consequently
fell under the ordinary jurisdiction of the Canadian Parliament, as
all other matters of local concern under the Union Act.
If the Canadian Parliament had a right, therefore, to deal with
the subject at all, it had a right to amend its own Acts in that par-
ticular.
I think it will scarcely be denied that if the right to legislate upon
any particular subject exists, that it includes the right to amend its
own Acts. Now the 24th Victoria was a mere amending Act,
and was assented to in the same manner as all other Acts of Par-
liament were.
It was not even a reserved Act. ‘The same authority which
assented to the 12th Victoria, assented to the 24th Victoria, in so
158
far as the inhabitants of this colony are concerned, and all Magis-
trates and Judges are bound by it. As well might it be pretended
that any other law in the Statute Book is illegal, as to say the 24th
Victoria is not the law of the land.
It was in fact doing what the 6th and Tth Victoria authorised
the Parliament to do, namely, to substitute Canadian enactments
for Imperial ones, thereby the more effectually to carry out the
provisions of the Ashburton ‘Treaty.
It was to do what by the fifth section of 6th and 7th Victoria
this country was authorised and empowered to do, and the effect
was, as then stated, to suspend the operation of the 6th and 7th
Victoria, so long as any substituted enactments existed in the
country for carrying out that Act, and by this law, 24th Victoria,
no proclamation and no Order in Council were necessary. It was
not necessary by the treaty, and the Order in Council was only
necessary by the Act of 6th and 7th to declare the suspension of
the Imperial Act.
If no such Order in Council had been made, the local Act would
not have had the less foree. It was the enacting clauses which
declared the suspension of the Imperial Statute, so soon as a Cana-
dian Act was passed, and from the moment the 12th Victoria,
chap. 19, became law, the Imperial Act was virtually suspended.
It was a mere form generally used in matters of State, and the
usual mode of making known the suspension of any law. But in
no way was it necessary to make or complete a law. So far as
regards the proclamation, it was not necessary to make the law,
but merely to announce the time of its coming int force, as it was
provided by the 12th Victoria, chap. 19.
However, as regards the 24th Victoria, there was an Order in
Council, but it was solely to say that the Act 24th Victoria was
left to its operation, and to intimate that the Act would not be dis-
allowed within the two years pointed out by the Union Act. Now,
would such an Order in Council have been passed if it had been for
a moment considered, that the mere amendment of the 12th Vic-
toria, chap. 19, had or could have had the effect of again reviving
and bringing into force the 6th and 7th Victoria.
The members of the Council and the law officers of the Crown,
whose attention was particularly drawn to the provisions of that law
by the ‘hen Secretary of State for the Colonies, the late Duke of
Newcastle, would not have fallen into such a blunder as to advise
her Majesty to leave the 24th Victoria to its operation#if thereby
the 6th and 7th Victoria would have again come in force.
The result would have been that two laws on the same subject
would have existed, repugnant and antagonistic in their nature,
which would have nullified each other, and the Ashburton Treaty
bates tee ey ta I CEA AE NEL OER EL EAL BALES ;
Magis-
‘tended
he 24th
horised
-tments
nut the
ictoria
» effect
nd 7th
in the
ictoria,
It was
8 only
sion of
; would
which
-Cana-
ctoria,
nded.
ad the
But in
far as
law,
it was
ler in
la was
be dis-
Now,
n for
Vic-
riving
‘own,
ht law
ke of
dvise
preby
bject
ture,
eaty
ici itt BO 2 hi I ERA ALE OB ISE COOSA AEA R DELO ALE SALON NE DAE AAR ENE te.
159
itself, the one declaring that the warrant of the Governor General
was necessary, and the other affirming that it was not, and both
sanctioned by the same authority, viz.: the Queen in Council. It
is impossible to suppose that if such had been the effect of passing
the 94th Victoria, so great an embarrassment would not have been
wVvoiued.
The Order in Council, insead of leaving the law of the 24th Vie-
toria to its operation, would have advised her Majesty to have dis-
allowed the Act.
The Imperial authorities considered, therefore, that the enact-
ments of the 24th Victoria, chap. 6, fully carried out the provisions
of the 6th and 7th Victoria, by substituting the enactments required
to suspend the operation of the 6th and 7th Victoria, in this coun-
try, and so long as these enactments existed, the 24th Victoria was
the law of the land. The argument that the Act of the 12th Vic-
toria was repealed by the Consolidated Statutes of Canada cannot
affect the question, for the 24th Victoria was substituted for the
12th Victoria, with all necessary enactments required by the
Imperial Statute 6th and 7th Victoria, to give effect to the law.
The very terms of the Order in Council on the subject of the
24th Victoria, clearly indicated that the Imperial authorities con-
sidered that the subject was exclusively within the jurisdiction of
the Canadian Parliament: for the words used in the Order in
Council, viz :—That the 24th Victoria should be left to its opera-
tion, simply according to Dwarris, pages 90-7-8-9, that it, the law,
is an affair of an ordinary and local nature.
If a second Order in Council had been necessary, according to
the argument of the Counsel for the prisoner, although not required
by the act itself, such a pretension must clearly rest on the asser-
tion that a mere Order in Council and a proclamation have greater
power and force than an act of Parliament.
The 24th Victoria having received the royal assent, it still had
not the force of law, until Her Majesty in Council kad approved of
it, and ratified it. An assent had already been given by the
Queen as the third great power in the Parliament of Canada, but
that assent must be again affirmed by an Order in Council before
the Act could become law. If so, there is not a single act in the
Statute Book which has the force of law.
The proposition therefore is that of Parliament composed of the
three great powers of the State, (the only powers which could make
a law,) have assented to the law—still the Privy Council, which
has no legislative functions whatever, must approve and ratify it
before the Act can become a law.
This argument in my opinion is untenable; the 12th Victoria
required an Order in Council precisely because the 6th and 7th
169
Victoria required it, not for the purpose of giving effect to the Act
of 12th Victoria, but sulely to suspend the operations of the Impe-
rial Act. As soon as an act was passed in this country to carry
out the treaty in Canada, the law had been fulfilled, and the juris-
diction transferred from the Imperial Parliament to the Canadian
Parliament.
If not for this object, what was the Canadian legislation to effect?
If then these acts had not required an Order in Council to be
given, such order would not have been necessary.
The Act 12th Victoria and the Imperial Act 6th and 7th Victoria,
both stated that as soon as Her Majesty, by an Order in Council,
suspended the 6th and 7th Victoria, then the Canadian law should
come into force. ‘This order was given, and the Imperial Act was
consequently suspended.
Thus, then, by the passing of the 24th Victoria, all the powers
of the government were brought into harmonious action.
The Legislature, the Judicial and the Executive, all concurred
in giving full effect to the treaty.
The powers conferred by this concur’ at action upon the Judges
and Magistrates of the country, in general terms, were as a mere
matter of local jurisdiction finally rzulated by the amending Act.
For the 12th Victoria, chap. 19, in giving this jurisdiction to the
Judges and Magistrates, generally, might have been inconvenient
in practice, as the most important questions of international law
might have been left to the determination of any country magis-
trate, who could not be supposed to bring to such important consi-
derations either the requisite time or the knowledge to deal satis-
factorily with the subject. I say this in no spirit of blame, but
solely to show how and for what purpose the amending Act was
passed, and that in so leaving the investigation of these points to
more experienced Judges, Parliament in no way exceeded its
powers or violated any of the provisions required for effectually
carrying out the treaty.
The treaty only received legislative effect in the United States
in 1848, several years after it had been passed.
Whether such legislative action was required to give effect to
the treaty had been then discussed.
The case of Nash, otherwise called Robbins, delivered up in
Charlestown for mutiny and murder, and afterwards executed in’
Jamaica, had raised doubts, and these doubts were therefore effec-
tually put an end to by the passing by Congress of the Act of
1848,
Those desirous of further examining this question are referred
to Hind on Habeas Corpus, page 581, and following pages, where
the subject has been to a certain extent discussed.
161
ho. Mot The moment then, that the Order in Council required by the:
| 6th and 7th Victoria, and 12th Victoria, chap. 19 hud been passed,
Impe- and the proclamation made in this country to that effect, the
penne | Order in Council had fulfilled the object intended to be attained
= ae by it, viz., the suspension of the Imperial Act within the limits of
woe this Province, and was no longer necessary. ;
effect ? It was intended in the first instance merely to declare that as Me
Tobe the Imperial Act alone could legislate on the subject for all the i
dominions of Her Majesty, the Act had been passed ; but so soon Hed
Stash. as the Canadian Parliament had legislated for the purpose of car- “lD
5 1 rying into effect that law, within the jurisdiction of that Parliament, aie
“sala according to its own laws and institutions, that the Imperial Act in ee
cena that particular would be accordingly suspended. Once suspended HF
it remained suspended, so long as Canadian legislation existed on ia
the subject. ae
ver Whether the Canadian Parliament could originate legislation on Hee
a the subject, is beside the question. ‘|
eres If it had authority in the first instance, it was delegated to Hs
Judges it, and delegated by the only authority which had any control over i
praia : the matter. | - Bayi
waa: : _ If the Imperial authorities were satisfied with the matter, surely ac
oe the i it is not for the people of this country to complain. alt
cantare The Imperial Act, therefore, once suspended, it remained sus- nif
al law pended, so long as there remained on the Statute Book any enact- Hs
magis- ment substituted for the Imperial one, carrying into complete effect i
b Gone: the Ashburton Treaty. ; We
CT aaiia: The conclusions, therefore, which I deduce from this branch of ie
abut the case after the passing of the 24th Victoria, are— ah
kakvwas Ast. ‘That the 24th Victoria was an amending Act to the 12th Ne
aaa Victoria, chap. 19, and simply substituted one mode of procedure Hd
Sad dis for another. ihe
Lotually That such power was expressly given by the fifth section of the
6th and 7th Victoria, chap. 76. That the power given to regulate
Stat necessarily implies the right to amend.
. That such amendment having received the Royal assent, it
fect to became law, and was absolutely binding on all the inhabitants of
the country.
een That it was more effectually to carry out the provisions of the
ee - law, and the treaty, as declared in the Imperial Act. coe
oee. That it had not the effect of reviving the 6th and 7th Victoria,
‘Act of I Imperial Statute.
4 That the only law in force in the Province on the subject, is the
24th Victoria, consequently that my warrant issued under the be
provisions of that law, is legal to all intents and purposes. a
L ih
ferred
where
I need not, therefore, extend the argument any further. Ihave
confined it to the examination of the general preposition, that the
Imperial Statute, 6th and 7th Victoria, was in force, and that I
was, therefore, without jurisdiction in the matter.
I will not touch on the smaller points raised tending in themselves
only to support the general objection, I have confined the argu-
ment to a strictly legal view of the objection, without, I trust, being
unnecessarily diffuse.
Allusion has been made in the course of the argument, to the fact
that different opinions have been entertained on this subject.
What may be the opinion of others on this point, it is neither
my business nor my duty to enquire. I am not here to criticise
the opinions of others, but to state my own. ‘This opinion has been
formed, irrespective of the opinions of all others, and I may say I
have never entertained a doubt on the subject.
In doing this I have stated the propositions of law, which I con-
sider as necessarily flowing from the argument, and after a careful
examination of the matter, I have come to the conclusion that my
warrant was properly issucd, and the objection taken hy the Counsel
for the prisoners is, therefore, overruled.
Mr. Kerr desired to bring wider his Honor'’s notice another ob-
jection, viz., that the prosecution had not, under the 24th Vic.,
chap. 6, made out any case against the accused. Tle said that the
12th Vic., cnap. 19 gave to judges and mugistrates of this country
cognizance of crimes committed “ within the jurisdiction of the
United States, or of any of such States’; but in the 24th Vic.,
cap. 6, the words, “ or of any of such States,” do not appear. It
becomes, then, necessary to enquire whether the act committed
by the accused at St. Albans, Vermont, constituted a crime com-
mitted within the jurisdiction of the United States of America.
There was with regard to the U. States, a federal jurisdiction and a
state jurisdiction. ‘The former, or U. 8. jurisdiction, was based on
certain grants of soverc.gn rights and privileges, made over by the
people of the several States composing the former Union. No
other rights and privileges attached to the Government of the
United States; and all other rights and privileges of sovereignty
not expressly made over by the Constitution to the Federal govern-
ment, attached and remained to each of the several States. In sup-
port of this he would refer to ‘Story on the Constitution,” p. 412.
The Government of the United States could not, then, claim any
ower not granted to it by the Constitution, and the powers actually
granted must be such as were given expressly or by implication. We
had, then, to enquire whether the jurisdiction of the United States
extended over crimes committed within the body of one of the several
States of the Union. IIe cited the opinion of Chief Justice Marshall,
[ have
at the
that |
nselves
> argu-
t, being
the fact
subject.
neither
criticise
1as been
ry say I
‘+h TL con-
. careful
that my
Counsel
other ob-
4th Vic.,
that the
country
n of the
th Vic.,
near. It
ommitted
hme com-
America.
hon and a
based on
r by the
ion. No
it of the
rereignty
] govern-
In sup-
’ p. 412.
slaim any
s actually
ion. We
dd States
ie several
Marshall,
wear par
163
delivered in the case of Bevaus, to shew that the jurisdiction of the
United States extended over only the District of Columbia, territo-
ries, dock-yards, cte., and over such places as had been placed
specially under the jurisdiction of the U. 8. government. Under
the Constitution and laws of the U. 8., the Federal Government had
no power to legislate for States, or in regard to crimes committed
within the jurisdiction of the State of Vermont. The conclusion of
This Honor’s warrant stated that the offence was committed against
the peace of the State of Vermont. Could the crime have possibly
been committed against the peace of any other State, than that
which had jurisdiction over it? The consequences were these :
Robbery i in a State or place not specially under the jurisdiction of
the U. 8. Government was a crime for which the Government there-
of had alone a right to legislate. Vermont had exercised that
right in this instance. Taking this into account, the Court was
not called upon to decide as to a point affecting the general Govern-
ment, but which merely concerned an individual sovereign State.
He thought his Honor must come to the conclusion that the robbery,
if robbery there was, was committed within the borders of the State
of Vermont, and not within the jurisdiction of the U. 8., and that
consequently the statute (24 Vie.) did not apply in this case, and
the prisoners must be discharged.
Mr. Abbott urged the e question whether or no there were reall
two jurisdictions in the United States; one jurisdiction of the
Federal Courts, and another of the State Courts ¢ And, in respect
to this particular charge, were these jurisdictions independent of
each other? Had the Federal Courts of the United States an
jurisdiction over this offence, or if not, had the Courts of the State
of Vermont? And if the State of Vermont had jurisdiction, was
it exclusive, or was it concurrent with that of the United States
with regard to the robbery committed at St. Albans? It was con-
tended on the other side that it had been proved that this offence,
committed in the State of Vermont, was against the laws of that
State. The prosecntion had even put a Vermont lawyer into the
box to prove this fact. But neither in the warrant nor in the in-
formation had the attempt been made to prove that this was a
crime against the United States or cognizable by them. The
lawyer who had been put into the box had proved that the crime of
robbing Brett was one entirely and exclusively within the jurisdic-
tion of the State of Vermont, and not cognizable by the United
States Courts. ILe would refer the Court to Wheaton’s American
Criminal Law, vol. 1, page 150 and following, and by this authority
it would be seen that the United States had not Jueeee 00 over
the crime of robbery committed in Vermont, or in any State having
its own Leyislature and jurisdiction. There were, then, two juris-
eee
pees aan
164
dictions in the United States, and the offence charged here was one
within the exclusive jurisdiction of the State of Vermont. The framers
of our law appeared to be wellaware of this fact, as they had made
provisions expressly for those two jurisdictions. The statute 12th
Victoria, cap. 19, was evidently drawn up with a careful view of
this distinction as to the two jurisdictions, and in this respect har-
monized exactly with the provisions of the Constitution of the United
States. But the 24th Vict., cap. 6, hastily prepared to facilitate
the extradition of fugitive slaves, had disregarded the distinction,
and provided only for the extradition of persons who had committed
certain crimes within the jurisdiction of the United States, omitting
to make similar provisions with respect to * any of such States’’; and
the omission of any provision with regard to ‘ any of such States’’
had been carefully made wherever one had occurred in the former
statute. ‘This must surely mean something, and only one construc-
tion could be put upon it. The word “ jurisdiction’ in our statute
should be taken in its technical sense; Sedgwick, 261 and 263,
laid down that when technical words occurred in a statute, they
must be taken in a technical sense. ‘The technical meaning of the
word “ jurisdiction”’ was perfectly plain, and the Court would
observe that in our statutes care had been taken not to use it in its
popular sense, but in its strictly legal sense.
Mr. Johnson said it was stated by the counsel opposite that we
were invoking a jurisdiction we had no right to invoke, and a great
deal had been said as to the domestic jurisdiction of the United
States, and of the Courts of the United States, but not one word as
to the sovereignty of the United States, and as to the will of those
two Powers who contracted, and whose contract we were to give
effect to if we could. There was a vast difference between one
State and several States, and the meaning of the word “ jurisdic-
tion ” in the sense of sovereignty in which it was used by nations
contracting as the United States and Great Britain had contracted
by this treaty. It could not be contended that the two nations had
power to legislate one thing, and the local Legislatures within the
sovereignty of each, another. The word “ jurisdiction”? meant
sovereignty or nothing when applied to nations; and the parties to
the Ashburton treaty could not have meant anything so senseless
as that the jurisdiction of the Federal Government, in cases of
extradition, was merely a domestic jurisdiction, extending only
over the District of Columbia, the wild lands and such places as
dockyards and ports. Did Great Britain then say, ‘“‘ We mean
never to ask for the extradition of any fugitives whatever except
of those found in the aforesaid localities?” Such a construction
would be at variance with common sense. The word “ jurisdiction’’
must mean the exercise, the possession of power, and the nations
Sn" ON ong
am - * 5k
was one
framers
ul made
ite 12th
view of
ect har-
» United
acilitate
tinction,
mmitted
omitting
37’; and
States’
» former
onstruc-
r statute
nd 263,
te, they
g of the
t would
it in its
that we
a great
United
word as
of those
to give
een one
jurisdic-
nations
atracted
ons had
thin the
meant
arties to
enseless
ases of
ng only
laces as
e mean
except
truction
iction”’
nations
165
contracting with regard thereto could not mean by the word the
actual domestic jurisdiction exercised by a Court of Quarter Ses-
sions, by the Court of a State, or by the Sapreme Court of any
State or the United States. The treaty did not mention the words
** one of the said States,” but merely * the United States.’” The
words were not that the crime should have been committed against
the jurisdiction of the United States, but in the jurisdiction of
the United States.”? What was alleged in the warrant was, not
that the offence was committed against the jurisdiction of the
United States, but against the peace of the State of Vermont, one
of the United States of Americ: 1, and within the jurisdiction of the
said United States. ‘This was all that was necessary. If the pri-
soners’ counsel held the correct view, the treaty would be a nullity.
There could be no extradition for any offence committed against
the laws of the United States properly so called except in the
small District of Columbia. Ife believed that the treaty and sta-
tutes passed to give it effect must be construed in the most liberal
and not the most narrow manner, and that the United States Gov-
ernment had power to extradite as rezards every State in the
Union.
Mr. Devlin followed on the same side.
Mr. Bethune contended that the Court could not put upon the
words ‘ within the jurisdiction of the United States”? the strict
interpretation given them by the Counsel for the defence, and
cited authorities to show that in interpreting statutes the real
intention would always prevail over the literal intention or ex-
pression. The preamble of the Act must be considered as a
part, and explanatory thereof; and the 24th Victoria judged by
this principle, and receiving its proper broad and liberal interpreta-
tion, vould sanction the view of the prosecution, that the United
States had power as regards every State of the Union in the mat-
ter of extradition. Was it to be supposed that while Great Britain
treated respecting the extradition of criminals from all parts of her
broad empire, the United States was to be undersivod as agreeing
to extradite with reference to only a few small sections such as the
district of Columbia? ‘The words of the treaty bearing upon the
subject were—* offences committed within the jurisdiction of either
nation.”” The statutes used the same phrase. The only ques-
tion was--Was Vermont within the jurisdiction of the United
States? Every witness swore it was. We were bound to give
the broadest meaning to the word ‘ Jurisdiction” in this case,
and could not say it meant the judicial jurisdiction, but meant
‘‘ within the territorial jurisdiction of the United States.’ The
learned gentleman cited several authorities, including “ Vattel,’
support of his views.
Csr rere meen cee
166
Mr. Kerr was astonished to heae the arguments of his learned
friends. The State of Vermont nad given over to the Federal
Government certain rights, but it had not given the right of juris-
diction. Ife maintained that where the court of a country could
not take jurisdiction of an offence, that offence was not committed
within the jurisdiction of the country itself. The Government had
brought a great deal of influence to bear on this case; but of
course every body was aware that a peace-offering must be made
to the Federal Executive. A number of people were of opinion
that the prisoners, though proved belligerents, should be given up,
in order that our fears might be silenced, and the bugebear of future
danger averted. I verything had been done to throw difficulties
in the way of the defence, still it was to be hoped that this Court
would render to the prisoners that justice which was their due.
It was to be hoped that his Honor sitting there would do justice
to these men regardless of consequences.
Mr. Lajflamme argued that there was nothing to justify the ren-
dition of the prisoners on this charge. The United States had a
certain jurisdiction belonging to the Federal Government ;_ the
State of Vermont had a separate and independent jurisdiction of
its own, and this charge was one of those which were cognizable
only by the jurisdiction of that State. Tn fact and in law the claim
now put forward by the prosecution was utterly untenable ; and the
Court, he thought, could come to no other conclusion. Our autho-
rities had gone out of their way to interfere in this case. We had
seen members of the Government posting off to Washington to
appease the authorities there, just as if there were no ‘law in
Canada to mect cases of this description. We have seen members
of the Government go to Washington to promise that we would be
good boys in future, lest General Dix should come over to Canada
and rescue the prisoners from our justice, so that they might be
given up to their justice. But no matter how the Gora nment of
this country had interfered in this case, he (Mr. Laflamme) was
certain that this Court would deal by these young men as the
principles of British constitutional law directed.
Judge Smith—I will take the case into consideration, and give
my decision on Tuesday.
The Court then adjourned.
Tuespay, Jan. 10th, 1865.
His Honor Judge Smith gave decision on the point raised by
the counsel for the defence on } Saturday, as follows :—
This objection rests on the ground that the offence charged is not
covered by the Ashburton 'T reaty, that it is an offence against the
State of Vermont; and as the State jurisdiction of Vermont i is
rn Cathleen Mas SA eM a Di RENE RI NRE ORBLE EDS Do
learned
Federal
of juris-
ry could
nmitted
ent had
but of
ye made
opinion
ven up,
f future
ficulties
3s Court
cir due.
- justice
the ren-
s had a
nt; the
iction of
enizable
he claim
and the
autho-
We had
iwton to
law in
1embers
vould be
Canada
ught be
ment of
ne) was
as the
ud give
SOO.
ised by
dis not
nst the
mont is
a tk Die NEE PTR LG DIRE RBS ES De
-
M
a
jurisdiction to deal with the subject.
jurisdiction ean be here used ima limited sense, as cither expressing
167
separate from, and independent of the jurisdiction of the United
States it is not covered by the 24th Victoria, chap. 6, which speaks
of offences committed within the jurisdiction of the United States
alone.
That the jurisdiction of the United States, and that of several
States, are separate § and independent of each other, and regulated
by positive law. That the 12th Victoria, chap. 19, acknowledged
this distinction hy speaking of the jurisdiction of the United States,
or of any of such States, thereby covering all offences committed
either within the juvisdicti ion of the United States, or of any such
States, and that the 24th Victoria, chap. 6, having omitted these
last words, viz.: ‘for of any such States,” that it necessarily and
intentionally restricted the operation of the Ashburton Treaty to
offences committed solely within the jurisdiction of the United
States, Phat it has heen proved in this case by the evidence taken
in support of this application, that the offence charged against the
prisoners was committed within the jurisdiction of the State of
Vermont and avainst the laws of that State alone, although within
the 'Tervitory of the United States, that it does not. fall within the
Statute 24th Victoria, and cous ceque utly the prisoner is entitled to
his discharve.
Thave thus stated the objection im its broadest pos: ible form, that
it may be covered by the argument made by the Counsel for the
prisoners.
The Ashburt: mt Treaty was passed for purely national purposes.
The surrender of persons for imputed crimes can only be done by
the Supreme Executive authority of independent n: itions.
This power in Great Britain existed in the Tniperial Parliament,
which could alone legislate for the Empire. Ti the United States
it existed in the Supreme Federal Legislature of the nation. The
object of the treaty could oaly be attained by the national power,
consequently it did not reside in any of the United States, but
in the Federal legislative power of the United States. The word
jurisdiction is not ‘used in its limited seise, asin reference to Courts
of Justice, or State legistation, but to exnress the Supreme National
jurisdiction of the Empire itself. In this sense, nid in the only
sense, in which the word jurisdiction can be here used, it means,
and is the sovereign jurisdiction of the nation, which aloae had
To suppose thet the word
or intending to inoly the jurisdiction of any State or of any Court
IS NCCeSs: wily to sup pose that these inferior jurisdiction is would have
exercised any power whatevet over the subject matter of the treaty,
)
or tos Ap pose that the Supreme Federal a ty having leo ‘slated,
the entire nation had wil fully restricted the ol Yjects at { the tree aty
168
to a sinall part only of its own territory, as: pposition which cannot
be entertained for a moment. By the or) aut Tth Vietoria, chap.
76, the treaty received a legislative auth \ force within the
territory of Great Britain, and by that law x provision is made for
the surrender of persons charged with offences commited within the
jurisdiction of the United States, and who should be found within
the territory of Great Britain.
The word Jurisdiction here must, therefore, mean territory, and
must inean the territorial jurisdiction of the nations, orit can mean
nothing. The same meaning is given by the Act, where power is
given to mayistrates and judes of both nations, and the whole law
itself clearly indicates what Parliament intended, when the word
jurisdiction was used. So also in the United States, where this
treaty with other treaties of the same nature, received legislative
force by Congress. Congress legislated for the several States as
well as the United States. Hurd, on Habeas Corpus, on page 79),
says: ‘The duty of surrendering the fugitive arising only from
Treaty stipulation, its performance i 18 supposed to appertain to the
Executive department of our Government, which by and with the
advice and consent of the Senate, constituted the treaty making
power; and by the discussion which took place in the case of
Hfolmes and Jennison et al., in 14 Peters, it was settled that no
(rovernor of any State had power to deliver up to a foreign Goy-
ernment a person charged with having committed a crime in the
territory of that Government.’ Thus it appears evident that the
Government of the United States and the Supreme Court of that
Government concurred, that in treaties the words jurisdiction and
treaty were cony ertible terms.
So far, therefore, as the Imperial Act is concerned, there can be
no possible difficulty on this point.
But the Canadian Parliament in legislating on the subject under
the power conferred on that body by the Act of 6th and 7th Vie-
toria, introduced into the first clause of 12th Victoria, the words
which have given rise to the difficulty.
That Statute said throughout the Act, that surrender should be
made by reason of offence committed within the jurisdiction of the
United States, or of any of the said States, thereby departing from
the words of the 6th and 7th Victoria and of the treaty itself.
And so throughout the said Act 12th Victoria, the same words are
used. ‘These: words, so unnecessary to express the objects of the
treaty itself and the 6th and 7th V ictoria, have given rise to the
idea, that it was the intention of the Legislature ‘to make the word
jurisdiction, used in the treaty, and in the Gth and 7th Victoria, to
be understood to be used in its limited and subordinate sense, and
thereby to create the same distinction in this Act, in explaining
GM: TRAE ratte richie Be ws
cannot
, chap.
hin the
ade for
thin the
~ within
ry, and
n mean
ower 1s
ole law
1c word
re this
‘islative
ates as
v0 O79,
ly from
to the
vith the
making
case of
that no
mn Gov-
in the
iat the
lof that
on and
can be
under
h Vic-
words
uld be
of the
¢ from
itself.
ds are
lof the
o the
word
ria, to
», and
ining
SR A CRE tte re Re Ba md
i Sea nema: ter
169
treaty obligations which exists when the word is used in its limited
and subordinate sense, to express the distinction between Federal
and State jurisdictions, or in Courts of Justice.
This was clearly a mistake of the Legislature, and beyond its
authority to do. For such distinction, if it could exist at all, would
have changed the contract between the two Governments, and
would have nullified the treé uty itself—a power which the Parlia-
ment did not possess.
But itis clear to me, from the whole act, that the additional
words were used not in such a sense, but from extreme caution,
and a desire more fully to explain that the word jurisdiction used
in the treaty, was to extend over the several States in the same
sense in which it was used when applied to the United States,
although this was altogether unnecessary, and was calculated rather
to confuse and to create doubts, than to remove them.
The 24th Victoria, therefore, removed these words so impro-
perly used in the 12th Victoria, chap. 6, thereby restoring the
word * jurisdiction’? to its true and original Yneaning, as given to
it by the tre aty, and by the 6th and Tth Victoria. ‘The third see-
tion of the 12th Victoria clearly show how improperly these words
were used.
Kor by that section, power is there given to any Governor of
any particular State to apply for the “yendition of any person
charged with crime, with power on his side to surrender to this
country any person so charged, and found within the limits of his
particular State.
Such a power does not exist. It is neither to be found in the
treaty nor in the Imperial Act, and it is not to be found in any
Act of the Congress of the United States.
Thus, Chief Justice Marshall, in answer to a question put in the
argument on the point, (see his work on the Federal Constitution,
page 142-3): What is the jurisdiction which a State professes ?
** We answer without hesitation, the jurisdiction of a State is Co-
extensive with its territory, co-extensive with its legislative power.
This is undoubtedly true. The argument, when applied to the
United States, is clear. Thus the jurisdiction of the Federal
Government which is supreme, is as extensive as its legislative
power. This legislative power extends over the whole United
States in reference to matters exclusively within its functions, such
as the treaty making power. Therefore Congress, being the ‘legis-
lative power, has exclusive jurisdiction over the territory of the
United States in this respect, and, therefore jurisdiction and terri-
tory are convertible terms, when used in the sense of the treaty
power. Now, the separate States, in this respect, have no legisla-
tive power whatever, and, consequently, they can have no jurisdic-
170
tion in the matter, and, if they have no jurisdiction over the sub-
ject, it is incontrovertible that in the sense and me: ining of the
‘Act there ean be no State jurisdiction which can come in contact
with the Federal jurisdiction expressed in’ the Statute, and, conse-
quently, in the treaty, and in the law, the word jurisdiction must
mean territorial jurisdiction. Thus it is clear that the words “ or
of any such State’? so used in the 12th Victoria, chap. 19th, were
improperly introduced, and they were properly rejected by the
24th Victoria, chap. 6, and the law now stands as if they had
never been introduced at all.
The offence charged against the prisoner is an offence committed
within the jurisdiction of the United States, and falls clearly within
the provisions of the treaty and the Act.
The warrant charging the prisoner with having committed ¢
crime against the laws of the State of Vermont, within the j oe
diction of the United States, is properly stated, and is necessarily
within my jurisdiction, The jurisdiction over the offence, that is
the crime, is the State jurisdiction of Vermont, but the jurisdiction
over the subjeet of. the treaty is in the Federal legislature of the
U.S. The offence must be designated as awainst the State of
Vermont, and so it is in the warrant. The objection is, therefore,
overruled,
Mr. Devlin said that the prosecution had finished their case, but
that if the defence adduced evidence he would he prepared to
Oppose it.
The voluntary examination of the prisoners was then proceeded
with.
Lt. B. HW. Young's statement :—I ama ciazen of the Confede-
rate States of America, and a soldier in their service; [hold and
herewith produce my commission as first Heutenant im the anny
of the Confederate States, and the imstruetions received at the time
that commission was conferred upon me, reserving the right to put
in evidence the further instructions I have received, at such time
and in such manner as my counsel may advise. (Mr. Young here
put im his commission and instructions from the War Deparunent
at Richmond, a copy of which we have already yriblished among
the proceedings before Mr. Justice Coursol.) My heart is as opposed
as most others to measures of retaliation, but T have suffered so many
hardships and endured so many privations in the cause of liberty
und freedom, that my heart is stecled ayamst sympathy for the
invaders and oppressors of my beloved, my native land. Fresh
from scenes ot devastate't firesides and ruined Villages, and listening
so lately to th» wail of the widow and ery of the verphan:; when 1
behold) the ruin and devastation which marks the track of the
Federal troops, can any one wonder that the fires of revenge and
sub-
’ the
itact
ynse-
must
(75 or
were
the
had
itted
ithin
rt
uris-
arily
at is
otion
' the
te of
fore,
, but
“l to
ded
rede-
and
nny
ime
put
ime
ere
nent
hong
sed
any
arty
the
‘esh
ing
mn T
the
ind
171
retaliation should) slumber within my bosom and only need the
opportunity to burst into flames. There are but few households in 1s
the South that have suffered no privations, and endured no bereave-
ments in our great struggle for the inherent rights of our race.
Truly in this war civilization has heen made to shudder, and demons
to rejoice, in the backward march of all that is ennobling and worthy
of the creatures made in God’s own image and after his own likeness.
Whatever was done at St. Albans, was so done by the authority
and order of my Government. TI have not violated the neutrality
laws of either Canada or Great Britain, nor was the expedition to
_——
———
en ee eee
ee
pt ee
———
—
Albans set on foot or projected in Canada. T have left home, it
friends, luxury and case tp battle for a cause endeared to me only het
as the cause of right. Disfranchised and driven from my native f,
State, Kentucky, [ have espoused the cause of a people whose Ba
blood fills my veins, and whose feeling and interest are identical i
with my own. = Tlaving espoused this cause, Twill never look back, ir
but rather than yield, will pour out my blood as a sacrifice at the We
altar of the dearest and noblest cause that can evi forth the efforts i
of man. LT have faced death many times ere this; and should I, ea,
contrary to all precedent, be extradited, Tam porte etly well aware WA
what my fate shall be. I can die as a son of the South, and the H
agony of ten thousand deaths will never eause me to regret what I Hy
lave. done, and the part Lhave borne in this struggle of rivht avainst
might. Thad believed that Canada would be trac to her pristine
reputation ; and at least deal me the jus tice and right guaranteed
hy the neutrality proclamation of ITer Majesty Queen Victoria;
and it was with feclings of surprise and wonder that L behold the
part ber Government has taken against me. All that Task is that
Impartial justice shall be meted me and my comrades: with the ti}
judiciary [ am safe, as T can’t but feel that his Honor before '
Whom FE now am Leought will give me right, though the Pleavens
fall, and that his sense of justice is fier : above Government influence
and the clamor of the fearful. ‘The flag of the empire has been
an emblem of protection to the oppressed and out-east ahen for hii
many a long weary year: and it will not fal to give me that im- +
partiality, which has made it the j joy of the fugitive for ages past.
I have but done my duty as a ¢ ‘onfederate soldier, and am willing
to abide the fate consequent thereupon, All the men with me at
Albans were either Confederate officers or soldiers, and upon
many a hard fought battle-field they have proven their devotion to
Southern rights and the Southern cause. And shoud we now be ea
called upon to yield our lives in its defence, the parting words of
fon. Jas. A. Seddon, Seeret: iy of War for Aye Confederate States, WY
will be verified. They were these: “Lieutenant, you go upon at ta
dangerous mission, and you and your commanl shall he. fully pro-
tected.”’ And I assure the good people of St. Albans that the day
upon which I die will be one that will bring a wail to the best
families in the Green Mountain State. My death shall be avenged,
and that in the blood of Vermont officers. And again I assert that
I have a heart for every fate; and if the English law fails to
protect me, my ¢g government can and will avenge my sacrifice at the
shrine of a cause to which thousands nobler than I have yielded
their life’s blood. I am not, however, fully prepared for the full
defence of myself and of my command, without communication with
my Government at Richmond, which I am now well assured I can
effect within thirty days from this time.
Marcus Spurr’s statement :-—Lam a native of Ke ntucky, and an
enlisted soldier of the C.S. army, and my term of service has not yet
expired. Lowe no allegiance to the so-called United States. but to
the Confederate States of America ; I was held as a prisoner of war
in a Federal prison from which I escaped; afterwards I was engaged
with other soldiers of the afore-mentioned army in doing” duty
within the Federal lines, last summer at Chicago, Ill. I ‘placed
myself under the command of Lieut. Y oung for the | purpose of assist-
ing in carrying out instructions from the ‘Confederate Secret ary of
War; I was in the States when the raid upon St. Albans was con-
cocted ; what I may have done at St. Albans I did as a soldier of
the Confederate army, discharging what I conscientiously believe
the duty I owed to my God and my country, and my fallen
comrades, and in obedience to the orders of Licut. Young of the
said army; in doing this I violated no Jaw of Canada or Great
Britain.
W. H. Hutchinson's statement :—I am a native of the State of
(reorgia, and owe no allegiance to what was at one time the United
States; I am not cuilty of any of the charges brought against me
here. In April, 1861, 1 joined the Southern army, and have been con-
nected with it up to the present tune; T have violated no laws of
Canada or Great Britain, For the fest four years of this present
unhappy war, the Southern people were only doing their duty in
repelling an insolent foc, and protecting themselves avainst outrage,
injury and insult; they fought against heavy odds a3 the muscular
resources of the eombined woul were arrayed against them, and
they have overcome great difficulties with the cheerfulness and
spirit of a brave people. Our friends, neighbors and relatives
have been plundered, and in many instances murdered; and it 13
the bounden duty of every Southern man to protect and avenge them
in an individual or national capacity. No civilized people could do
more, and no true patriot, of whatever clime, could do less.
S. 7. Travis’ statement :—-T ama native of Kentucky, a’soldier
in the Confederate States army. I owe my allegiance to the Con-
suman teeta ieilleat 6
day
best
ced,
that
Is to
t the
Ided
full
with
can
dan
t yet
ut to
war
uged
uty
ace
3sist-
"y of
con-
er of
lieve
ulen
the
reat
e of
hited
me
con-
3 of
sent
y in
we,
ular
and
and
ives
it 18
1em
| do
(lier
Jon-
(o
federate Government, and not to the Yankee Government; What I
did at St. Albans was in the capacity of a Confederate soldier, in
obedience to the orders of Lieut. Young, a Confederate officer. |
violated no laws of Great Britain or Canada.
Charles Moore Swager’s statement :—I ama native of Kentucky
an¢ a Confederate soldier, owing no allegiance to any government
but the Confederate States of America; [ was ¢ captured a prisoner
of war by the Yankee forces last May, and effected my eseape from my
enemies at Chicago, while on my way to prison. — I joined Lieutenant
Young’s comm: und at Chicago, last August, and participated in the
St. Albans raid. I feel it my duty as a soldier, to harass and an-
noy the army and navy of the United States, cripple and destroy
its shipping and commerce, capture and burn its towns and cities,
and oterwise damage, if possible, a Government which seeks our
destruction ; my object being to remove, in &@ manner, the seat of
war to the heart of the New E ngland States, and make their people
feel some of the horrors of war, in retaliation for the crimes and
outrages inflicted on the weak and defenceless women and children
of the South; any acts I might have committed at St. Albans was
in the capacity of a Confederate soldier, acting under orders of
Lieut. Young, a commissioned officer of the ( “onfederate army. = |
look to my Government for the reward which a soldier who has
performed a hazardous and dangerous duty has a right to expect,
knowing full well that the people of my beloved South will justify
and applaud my conduct. [have violated no laws of Great Britain
or Caneda.
Mr. Abbott then presented the following petition, asking for
thirty days delay.
PROVINCE OF CANADA, ) Bennet H. Young and Marcus
Re ts ease Spurr, two ofthe prisoners whose
Lower Canada, to wit: extradition is demanded, de-
posing on behalf of themselves and of their fellow prisuners in this
matter being severally duly sworn, de depose and say : That deponents
and the other prisoners charged with the offence now under investi-
gation, require certain testimony which is necessary and material
to their defence, and which they are unable to procure in Montreal,
or even in Canada. ‘That such evidence will establish amongst
other things that every one of the prisoners now in custody is an
5 ~™ . .
officer or soldier of the army of the Confederate States of America,
duly enlisted, enrolled or commissioned respectively, and that their
term of service has not expired ; That this deponent, Bennett H.
Young is, and was on the nineteenth day of October last, an officer
174
of the avmy of the Confederate States of America, holding the com-
mision and rank of first lieutenant in that army ; and that the other
of these deponents and the remainder of the prisoners were duly en-
vaved and placed under his command for special service under the
suuthority to him given by the Government of the said Confederate
States, through the Secretary for the War Department thereof; That
every act t and thing which they 0 or any of them did on the nineteenth
of October last at St. Albans, in the State of Vermont, was so done
under and in pursuance of the orders of the said Licutenant Young,
given by him by virtue of his instructions from the said Government
and of his authority in the premises; That all and every of the
suid acts were duly authorised and directed by the military autho-
rities of the said Confederate States acting under the Government
thereof, and were acts of warfare committed and performed in con-
formity with the rules and precedents by which civilized warfare is
conducted ; and that they were more than justified by the acts of
venerals and armics in the service and under the orders of the
Kederal Government of the United States, and as retaliation for
such acts ; That the said acts of these deponents and of the other
prisoners have been approved of by the said Government of the
said Confederate States, as bemg done in conformity with instruc-
tions so received froin the said Government, and have been recog-
nized and adopted by the said Government in authentic form ac-
cording to constitutional law and usage; That on a former occasion
wher before a Judge on an applic ation for extradition, these de-
ponents and the other prisoners used every means in their power to
open & communication with Richmond for the purpose of procuring
such evidence, and amongst steps tending to that end, applied by
petition to his Excellency the Governor- General of Canada, praying
for such assistance as might lawfully be afforded them in the attempt
to obtain evidence therefrom ; : and also made a similar application
to the President of the United States, which applications were
rejected; that they also caused speci iY messengers to be sent to
Richmond, some of whom had been arrested by the Federal autho-
rities previous to the discharge of tlie deponents and others who had not
then been heard from. But that so soon as they were discharged
hy Judge Coursol, their efforts to communicate with Richmond
ceased, and the news of such discharge doubtless caused the autho-
rities there to desist from any attempt to transmit to deponents the
documents applied for.
That immediately after the re-arrest of deponents a messenger left
Halifax charged with procuring from the Government of the Con-
federate States the required evidence, and that although deponents
expected and believed that the opinion of Judge C ‘oursol would be
sustained, they also took other means to place themselves in a
Vio
com- condition te be able to defend themselves, the nature of which they
ther cannot disclose without imperilling thei SUCCOSS. Hp
y cli- That deponents have since received information and assurances At
r the upon which they believe they can rely, that the evidence they Si
orate require and have alre ady taken measures to obtain, ean and will be ! ( |
That forthcoming within a month from this date. ‘That if they are not l\¢
enth accorded the said delay to enable them to procure the evidence — . fe
done necessary for their defence, such evidence as they will be enabled |
ung, to offer will he necessarily less perfect than if a just and humane
ment indulgence were aceorded to them; and that if hy reason of the
f the want of requisite time to obtam such evidence, their defence should
utho- be imperfectly established, and they should thereupon be delivered
ment to the emissaries of the Federal Government, such a proceeding
con- will be handing them over to certain death at the hands of the
re 18 executioner, on the pretence that they committed crimes which they
‘ts ol never either committed or contemplated, and which they look upon ih
; the with abhorrence ; but, in reality, because they are the enemies of }
n for the Northern Government, engaged in warfare against them, and Hes
other because that Government desires to wreak vengeance upon them, We
f the which is neither justifiable by the laws of war nor of any civilized aa
truc- country. Hi}
ecog- And deponents further say that they do not apply for the said Wa
n ac- delay from any desire unduly to suspend or delay the proceedings he
asion for their extradition, but for the sole and only reason that they i
> de- earnestly desire to place the whole truth fully and fairly before Wh
er to his Honor the Judge, before whom the application for their extra- ie
ring dition is pending, and that they cannot propose with confidence to
d by do so within a less period of time than that which they have men-
ying tioned.
empt Hil
And deponents have severally signed.
tion |
vere “worn before me at Montreal, ) BENNETT HW. YOUNG,
it. to this tenth day of January, { MARCUS SVPURR.
tho- eighteen hundred and sixty- f bib
not e. five. ie
ged J. SMivru. rhe
ond ia
tho- Mr. Jevlin—Objected to the application, contending that it if
s the was pre iature ; that the first question to be solved and deter-
mined was, shall witnesses be examined in behalf of the prisoners? If the
left the Court shouid rule in the affirmative, that would be the time for ‘' ay
Jon- such an application as the present. ‘This apy lication was a trap, Bik
ents for an assent to the examination of witnesses for the defence would a
lh be be involved in the granting a delay for the bringing up of such [ies
na : witnesses. We ask the counsel opposite to go on their defence, at
and whether they intend to examine witnesses.
: omen! sega mann srt awisennunnanet aes etre te wena =
osteoma be Bisoasachael oaer nie emcee =
orp ee sss sere eee rurorv msoaisom nee euconnennnanrnst | an apeenntinneanrwecnennnenrenceae
4 - a ; : . on ¥ Pi ? a
176
Mr, Abbott.—Of course we intend to examine witnesses.
Mr, Devlin.—The first question [ would wish to bring up is a
question of law, and in order to do so, I call on my learned frieiis
to proceed with the examination of their witnesses, if they have
any, or to cite some authority, or present some argument to justify
the Court in receiving evidence for the defence.
Judge Smith.—It is clear what the nature of the objection is; but
T cannot give any opinion upon it till T hear counsel on both sides.
Mr, Devlin said the indulgence asked would amount to a denial
of justice, the accused having already been granted thirty days for
the obtainment of witnesses from Richmond. If the prisoners had
availed themselves of this indulgence, their witnesses might have
heen here to-day. They were arrested on the 19th October last,
since when, with the exception of a short time, they had been in
custody, having had sufficient opportunity to bring forward their
testimony in lefence. ‘The object of the application was, evi-
dently to defeat, by delay, the prosecution. Then the affidavit
abstained from mentioning a single fact which can be or could
be proved by any of the witnesses whom they pretended they
were anxious to examine, in spite of the rue re iiring that when
an application was made for del: ay to obtain testimony, the ap-
plicant must state the facts he desired to prove thereby. Was
his Honor prepared to depart so far from a practice hitherto
prevalent, and sancti an application of a party who had the assu-
rance to demand tiis favor, and, at the same time, studious]
conceal from the Vourt the faets intended to be established ¢ The
affidavit or application itself was defective, and seems to have
been written with but one object, and that to abuse and in-
sult, as far as they could, the United States, the parties who
were simply asking justice at our hands. As to the statements that
the accused, if extradited, would be sacrificed by the United-States
authorities, we were bound to believe that, if surrendered to them
to-morrow, the raiders would receive impartial justice and a fair
tial. Te (Mr. D.) protested against the introduction into the
affidavit of statements as to the execution of vengeance upon the
raiders in the event of their rendition to the authorities. Such
statements were an infringement upon the honor of the Court.
[f the prisoners were commissioned by the authorities at Rich-
mond, the latter should have taken the precaution to furnish
them with the evidence of it, and of the belligerency of their
acts. ‘Taking it for granted they were sent abroad to commit
murder and robbery in St. Albans, in a peaceful, defenceless
place, they should have been fortified with all the authority
that the so called Confederate States could confer upon them, in
order that their lives might not be exposed to the consequences ot
is a
wens
have
ustify
3; but
sides.
lenial
ys for
s had
have
' last,
en in
their
, eVi-
idavit
eould
they
when
ie ap-
Was
therto
- assu-
10usl
The
have
vd in-
who
3 that
States
them
a fair
o the
n the
Such
Nourt.
Rich-
irnish
their
mmit
eless
iority
m, in
bes of
177
the crimes they had committed. If such were acts of war, and
were to be justified on that ground we had a right to say—we are
neutrals determined to do even-handed justice, show us your
authority to commit such deeds against your adversary. “The
learned gentleman concluded by ridiculing the application as one
that should not for a moment be entertained by the Court. The
delay asked for, he added, wouldsimply amount to a denial of jus-
tice, and to a total extinction of the case.
Mr. Johnson said that this affidavit prayed for a delay. Now
two questions arose: first, for what purpose was the evidence
intended ? second, what were the grounds for not submitting
the evidence that could be procured here ? In another Court he
had opposed an application of this kind, and he would do so here.
He contended then, and contended now, that in a preliminary
investigation like this one, such an application could not be sought
for, as “it was entirely outside the s scope of the treaty, under the
terms of which a magistrate must commit where there are just
grounds for suspicion. ‘This was all that our magistrates had to do.
Either these men must be tried by the Courts of the United States,
or not be tried at all; and to say that the treaty contemplated that
offenders, for whose extradition the United States made application,
were to have their guilt or innocence tried and pronounced upon in
our Courts, was to say that we had degenerated from a state of
civilization into a nation of savages, unable to make treaties or to
enforce them. The affidavit did not state what was the nature of
the evidence to procure which a delay or thirty days was prayed
for. It did not state explicitly what the law demanded it should,
namely that the evidence be specified, in order that the Court might
determine whether that evidence was of the proper kind. If a
British subject made the same application, and made the same
omission, his prayer would not receive a moment’s consideration.
No man had a right, according to the English law, to produce evi-
dence before a magistrate tending to characterize an act that he ad-
mitted to have done. He would refer to a case recently tried in
England—that of the Gerity. That case was tried before Chief Jus-
tice Cockburn, and Justices Crompton, Blackburn and Shee ; and it
was held that on an application for extradition the duty of the exami-
ning magistrate was purely to enquire after the evidence of a
prima facie case, and nein more. And it was further held that
the fact of belligerency must be a ease for trial before a Jury, m
the country against which the offence was committed, and not for
the Mavistrate of a foreign nation before whom the complaint was
made, ‘Tie learned counsel proceeded to read from an English
law magazine, the remarks made by the four Judges in the Gerity
case, and to comment on the decision of their Lordships ; ; and pro-
M
tm
178
ceeded to say that the decision in the Gerity case laid down that
the question of belligerency was one that could not come before
an examining Magistrate.
Mr. Bethune.—This was simply a charge of robbery. ‘The
parties dressed as citizens, entered a town where there was not
an armed soldier, and, in broad daylight, committed what was known
as common robbery. ‘The parties admitted that they were there,
and asserted that what they did was an act of war. But the
Court had no right to investigate whether it was or was not an act
of war; to do so would be to go beyond the scope aud meaning of
the treaty. ‘The treaty simply contemplated a preliminary exami
nation, and on a prima fucie case being made out, then it was for
the Judge to commit, and the matter was left between the two
Governments. ‘The case of the Gerity had heen mentioned by
his learned friend, Mr. Johnson. <A case in which a similar opt
nion was held would be found to have been given by Attorney-Ge-
neral Cushing, in pages 204 and 211 of the “ Opinions of the
Attorney’s-General.”” A more recent case was that of Frank
Muller. From the law report of the proceedings against Muller
in New York, the commissioners said that in order ‘to determine
whether the man was guilty or not, he must be sent back to be tried
in the place where the murder was committed. Then there was
the case of the British brig ‘‘ Richmond,” in which, in a case of
murder, the same commissioner in New York pursued a similar
line of conduct. We had a case in our own Courts, where the
same principle was maintained ; it was that of the runaway black
Anderson. He was tried in Upper Canada, and, as would be
found in page 60, tenth volume Common Plea Reports, Chief Jus-
tice Draper said: “If there be a question of fact to be tried, I
apprehend he (Anderson) must be surrendered, as that can only
be tried in the country where it arose.’’ The learned counsel!
concluded by expressing a hope that the Court would not act con-
trary to the principles laid down by the English judges in the case
of “ Gerity.”
The Court then adjourned.
Wednesday, Jan. 11, 1865.
The Court opened at half-past ten.
Mr. Devlin asked if the prosecution were to understand that hig
Honor, in deciding upon the application for thirty days’ delay,
would decide upon ‘the admissibility of evidence.
Judge Smith—After Mr. Abbott has finished his argument, I
will be in a better position to pronounce upon that point.
Mr. Abbott.—I am prepared, your Honor, to argue the question
upon the instant.
hd
in
o
.
4
i
179
1 that Judge Smith.—The whole question, as to the admissibility of the
vefore evidence, Mr. Devlin, is intimately connected with the merits of the
ny ease, and I feel it would be premature in me, at this stage of the |
sighs proceedings, to pronounce an opinion, and do not think it would
8 not he in the interest of justice that [should do so. Istated yesterday h
nown that no defence, properly so called, could be entered into at all, | F
here, and that the prisoners could not go upon their trial before me, for i)
t the [ have no jurisdiction in that respect. What I am bound to do is if
n act to see if the prisoners have committed any crime which falls within I
ng ot the scope of the Extradition Treaty, aud that must de ‘pend upon if
nam the res geste of the alleged offence. Suppose that a man is 9
8 tor charged with murder, and that a witness comes up and s says, ] ty
two saw you strike a man down and kill him on the street. But sup- Hf
d by pose the man accused turns round and says, ‘ T must be permitted it
ORE: to tell the whole story, and shew that the party whom I struck down Na
7-Ge- was following me from behind with a hatchet to kill me, and that 1 nl:
: the shot him in my own defence. Now, supposing such a case, would We
rank the offence be murder ¢ Not at all. Apply, then, the same rea-
uller soning to this case; the prisoners say that they were in St. Albans ; as
ane that they committed certain acts there, but that they were justified HH
tried in so doing, as they acted under the instructions of their govern- ;
Wee ment, a thing which they were bound by their allegiance to do, He
se of Now, these men say—** we did these acts, but give us an oppor-
ilar tunity of showing that we had ample authority and justification for
the these acts.” ‘Technic: ly speaking, these men cannot go on their
lack defence before me. But if they show commissions and | prove that
be they are belligerents, ‘then, possibly, there must be an end of the
Jus- matter. .
d, I Mr, Abbott.—The distinction which Iam prepared to establish 4
only is this:—If it be really a case of conflicting evidence, the fact of h
nse! the crime being committed being proved, that is no case for a
be Magistrate to try ; it is not within his jurisdiction to do so.
ae Judye Smith.—Clearly not ; it is none of my business.
Mr. Abbott.—But if, on the other hand, the prisoners propose Had
to shew that the act committed does not constitute a crime for Fy
which extradition could be demanded, that is a question which the
Judge must investigate and decide. ‘In doing this he does not try
a the robbery, but tlie application of the treaty. The prosecution i
his should be content to limit themselves to the question of delay before
lay, the Court ; the magnitude of the questions involved, if your Honor
is called upon to decide now as to whether the evidence is mate- Yet
I rial or not, should induce the prosecution to confine themselves to He
; the matter now before your Honor. i
i Judge Smith.—The question of the admissibility of the evidence Mei
is a very different thing from the relevancy of the evidence. No Wh
180
verbal testimony can be received in the way of proof. If the pri-
soner Young had produced documents at the time he was asked
what he had to say—if he had had them in his possession, I don’t
see how the prosecution could oppose their being put in. Some-
thing has been said about delay in this case; but since I have been
connected with it I am not aware that there has been very great
delay. I think the case has been proceeded with as rapidly as
possible. I granted my warrant on the 13th of December ; the
prisoners were arrested on the 20th; they were brought before me
on the 23rd, just as I was finishing the Court, and I could not then
proceed. The holidays intervened, and the prisoners came up on
the 27th. Now itis the 11th of January, and seven days have
been occupied en délibéré. In fact the case has gone on with
great celerity, when the amount of labor connected with it is taken
into consideration. As to the present application, my impression
is that I should grant delay. I do not wish to be obliged to give
my reasons for this opinion at the present time, and it is within my
discretion to hold back any opinion at this moment on the facts.
But is there any argument to be offered by the prosecution ?
Mr. Bethune.—I don’t withdraw the opposition I made yester-
day in the slightest degree. I am satisfied, looking back at the
whole history of this matter, that all this is merely for delay.
There is an application for a delay of thirty days, in order to send
to Richmond, and for what? Far the very instructions the priso-
ners said they received. Your Honor has ruled that there can be
no verbal proof, therefore the prisoners should produce the specific
orders they received from Richmond. Why are they not produced %
Mr. Abbott.—Does my learned friend imagine that a lieutenant
would carry instructions from the Seeretary at War on his person ?
Mr. Devlin —We have no power to control the action of the
Court in this matter of granting delay, but I protest against it.
Judge Smith—I have not given any judgment as yet, Mr.
Devlin.
Mr. Devlin said he solemnly protested against this delay ; and,
if it were granted, he doubted very much whether he would ever
be instructed to appear in this case agein. It was the second time
in the history of our Courts that when prisoners had voluntarily
entered upon theiz defence an application of this kind had been
made. If five of our own citizens were before the Court, charged
with the commission of crime in this Province, after the evidence
for the prosecution had been gone into would a delay of thirty days
be granted ? It was the duty of the counsel for the prisoners, when
their clients were brought up on the 23d of December last, to have
informed the Court that they were not in a position to bring forward
their evidence, that their witnesses were absent, and then to request
If the pri-
1e was asked
ssion, I don’t
tin. Some-
» I have been
n very great
as rapidly as
-cember ; the
tht before me
‘ould not then
3 came up on
on days have
gone on with
ith it is taken
1y impression
liged to give
; is within my
on the facts.
cution ?
made yester-
back at the
ly for delay.
rder to send
ms the priso-
there can be
e the specific
ot produced %
a lieutenant
n his person ?
action of the
pgainst it.
as yet, Mr.
s delay ; and,
would ever
second time
d voluntarily
nd had been
ourt, charged
the evidence
bf thirty days
soners, when
last, to have
bring forward
hen to request
181
the Court not to call upon them to enter on their defence till they
were fully prepared. ‘This application for thirty days’ delay was
made without there being a tittle of evidence to show that dili-
gence had been used to »btain evidence for the defence. There
was no precedent to jusuty a delay of this description. ‘The Ameri-
can authorities did not show a single case in which, on their side
the lines, such an application had ever been granted in behalf ofa
fugitive claimed by us under the treaty. He doubted if an appli-
cation of this kind was ever even made in our or the American
Courts. If this delay was granted, he really thought that the Extra-
dition Treaty would, as far as Canada was concerned, be considered
a dead letter.
Judge Smith thought that Mr. Devlin in his remarks, regarding
the Court, had gone a little too far; he (the Judge) had simply
questioned the counsel to know from them if it was necessar: ‘o hear
an argument of the case. Ile had stated his reasons why he did
not wish to decide thi it peremptorily. Ife had given no reasons
for his inclination to _ cat this delay, or for declaring his wish in the
matter ; yet Mr. Devlin had attacked him as having decided the case
unadvisedly, and, without hearing the Court’s reasons, had almost
charged it with a denial ofjustice. Now, taking the latter considera-
tion alone, what denial of justice could result by giving the prisoners a
delay of thirty days? If they could not produce any evidence of the
kind they wished, where was the injury to the prosecution ?—those
unfortunate prisoners would have to be surrendered. But if they
should produce evidence to change the opinion as to their liability
to extradition, surely no one could complain, if the testimony be
according to the rules of law and justice. Where was the injury ?
None possible. The Court did not mean to say that what the defence
desired to produce might be beneficial ; but the delay would simply
give the prisoners the means of saying all they could say in justi-
fication of the act which their opponents designated an act of robbery,
but which they themselves contended was an act of war. If they
were robbers they could not escape from the position of such, even
granting the delay. In order, therefore, to enable him (the
Judge) to judge accurately and correctly as to the position and
quality of the accused, and consequently as to the nature of the
offence charged, it was but fair to those men to hear what they had
to say. Whether his opinion would be borne out ultimately, when
he came to assign his reasons, was another matter.
Mr. Bethune.—But we can’t withdraw the point we raised yester-
day, as our view of this matter.
The Judge.—No ; but it may be reserved, and heard on the merits
of the case. The great argument of the prosecution was, “ why did
not these men produce the papers required as evidence in their
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182
defence before ?’’ Now, we knew the position in which their country
was placed, and the difficulty attending a journey to Richmond.
How was it it possible to get within even a reasonable distance of
that city at present? The prisoners were placed under great disad-
vantages in this respect, and it was the duty of the Court to afford
them the means of, at least, making known the nature of their
defence. Considering the difficulty and danger encountered in
reaching Richmond, the delay asked was not extravagant, and not
of a nature to defeat the ends of justice, according to the Court’s
opinion. It is clear to my mind that anything like verbal testi-
mony in this matter will be insufficient.
Mi Abbott.—We will endeavour to give you the best evidence,
and in any case we shall proceed according to the rules of evidence.
And if we offer evidence admissible under those rules, we expect it
will be received.
The Judge.—Oh, clearly.
Mr. Abbott.—I shall not argue the question on its merits,
as the Court is disposed to grant the delay. But notwith-
standing the statements of the learned counsel, I maintain that
this application is by no means unprecedented. On an application
recently made in Toronto (Burley’s case) the Court granted
thirty days’ delay for the same purpose ; and Judge Short, of Sher-
brooke, also lately granted what he considered a suitable delay
for a similar object. Judge Coursol had also given thirty days’ delay
in this case for the same end. They had administered justice in
the United States, on occasions like the present, when their passions
were not excited as now, in a similar manner; and there could be
no doubt, many instances could be cited in which the United States
Courts had granted delays to parties desirous cf showing that no
offence had been committed under the Treaty. In the very case
cited by the opposite counsel yesterday, in which the plea of insanity
had been urged, the Attorney-General’s decision showed that the
plea had been thoroughly investigated. Then, again, in the case
of the deserters from Halifax, whose extradition from Boston was
demanded—not on the ground of their being deserters, but of
having committed a robbery—what was the answer ?
Mr Bethune.—The case there turned entirely upon the word
‘“‘robbery.”’ ‘The men had stolen the military chest, aud the Court
held it was a larceny and not a robbery.
Mr Abbott.—I get my information not from any special law report
—for I have been unable to discover any—but from the ordinary
newspapers, and I understand that the extradition was refused be-
cause the deserters’ crime was complicated with their desertion—°n
offence of a character not contemplated by the Treaty. We all
know that when McKenzie murdered or caused to be murdered
oe nee
aM EEN cai ae each a
a ee
yuntry
mond.
nce of
disad-
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ed in
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ourt’s
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ect it
erits,
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. that
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uted
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ase
was
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urt
183
Colonel Moodie, and fled te New York, the Governor of the State
refused to issue his warrant of arrest, that the demand for his ex-
tradition might be tried. The Attorney-General of the State then
gave his opinion that there could be no extradition in such a case
at all. Though the treaty had not then been passed, the State
Judges were disposed to extradite as a matter of comity.
Mr Devlin.—But never did.
Mr Abbott.—Many Judges, and Chancellor Kent, held they
were bound so to do. ‘The only ground on which McKenzie’s extra-
dition was refused was, that we had a rebellion in the Province.
The then Attorney-General of the State of New York set forth, in
an elaborate opinion on the case, that there was no instance in the
history of International law of an extradition being granted where
the fugitive’s offence was complicated with any crime of a political
nature. We know also, in the case of McLeod, who went to cut
out the “ Caroline,’ when on the American side of the river Nia-
gara, that though he had no written instructions to justify the act,
yet in consequence of that act having been adopted by the Govern-
ment of this country, the Federal authorities, through their Secre-
tary of State, acknowledged it was a sufficient answer to the charge
of murder preferred against him, and that he should never have
been tried by the State Court.
Mr Devilin.—I admit that. But the circumstances were different
from those of this case.
Mr Abbott.—Oh, the circumstances were different, as we shall
show by evidence we intend to put on record. ‘Lhere was no
national war at the time of McLeod’s act, and besides, he held no
commission in the British service; and there was no acknow-
ledgment by the United States of any belligerent powers in Canada,
There are a dozen points in which the case of Lieut. Young is
infinitely more favorable than that of McLeod. I merely mention
these facts to show that the assertion that a delay of the kind asked
be unprecedented, is entirely fallacious. I could produce many
more instances if necessary.
Mr Devlin said the steamer “ Caroline’ had been engaged in
carrying munitions of war to the Canadian rebels, and that the
party who attacked her was specially instructed by Sir Allan Mc-
Nab..
Mr Abbott.—I only referred to those cases to establish the
general principle.
The Judge.—I am disposed, under the circumstances, to grant the
delay asked for ; and believe it is best in every point of view to
afford every possible opportunity to both parties to bring forward
what may benefit either.
His Honor, Counsel on both sides having consented, remanded
the prisoners for thirty days, till 10th February next.
if
fl
Sains
ie
Sree re er ee
184
Friday, 10th Feb., 1865.
On the demand of the President of the United States, for the
extradition of Bennet H. Young, e¢ al.:
Hon. Mr. Abbott said that in consequence of circumstances
which had occurred since the application for the 80 days’ delay had
been made, he should be obliged to make another application for
an extension of that delay, the reasons for which were set forth in
the following affidavit :
Bennett H. Young and Marcus Spurr, two of the prisoners whose
extradition is sought in this matter, being severally duly sworn,
depose and say :—That immediately upon the granting of the delay
of thirty days awarded to them by the Honorable Mr. Justice Smith,
for the purpose of obtaining from Richmond, in the State of Virginia,
one of the Confederate States of America, seceding from the Union
of States, heretofore known as the United States of America, cer-
tain documentary evidence material to their defence ; these depon-
ents and the other prisoners in custody on the said demand caused
messengers to be dispatched by different routes to Richmond afore-
said, with directions to penetrate through the lines of the said United
States, the parties prosecuting in this cause; and to obtain from
Richmond aforesaid, the documents and evidence already described
in the affidavit already fyled in this cause on behalf of the said
prisoners, on the 10th day of January last past. ‘That the first of
the said messengers, namely Lieutenant 8. B. Davis—an officer in
the army of the Confederate States of America, who volunteered to
proceed to Richmond aforesaid, with despatches specifying the
documents required, and requesting their transmission—was so dis-
patched on the tenth day of January last past, and was arrested by
persons in the employ of the said prosecuting parties, the said
United States, and was by them detained, on the pretence that he
was a spy of the said Confederate States; and was subjected to a
trial, before a tribunal termed a general court-martial, convened
under the orders and direction of the said prosecuting parties at
Cincinnati, in the State of Ohio, and composed of their officers,
upon the charge that he the said Lieutenant 8. B. Davis whom
the said prosecuting parties arraigned before the said court-martial
under that name, and also under the name or alias of Willoughby
Cummings, was a spy within the meaning of the laws of war, and
that thereupon the said Lieutenant Davis, was by the said tribunal
found guilty, and sentenced to be hung by the neck until he should
be dead—which finding and sentence were confirmed by Major
General Hooker, an officer of the army of the United States com-
r the:
ances
y had
n for
‘th in
vhose
vorn,
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mith,
rinia,
Jnion
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nited
from
"ibed
said
> eS
185
manding the Department wherein the said court-martial was held,
and were by him ordered to be carried into effect on the seven-
teenth day of February instant. ‘The whole notwithstanding (as
these deponents are informed and believe) that the said court-mar-
tial and the said Major General Hooker well knew that the said
Lieutenart Davis was not a spy, but a brave and disinterested man,
who had voluntarily exposed himself to the risk of any contingency
that might happen to him, that he might aid in placing full evidence
before the presiding judge, respecting the matter under examina-
tion in this cause ; and that he was not charged with and did not
carry any other despatches or information than such as was exclu-
sively connected with the proceedings in this matter. And more-
over that these facts were all stated by Lieutenant Davis to the
said court-martial upon his trial. ‘That these deponents have been
credibly informed and believe that the following is an exact copy
o} the general order of the said Major General Hooker containing
the record of the said trial and sentence and his approval thereof:
TeEADQuARTERS, NorTHEeRN Dep’, |
Cincinnati, Jan. 26. §
GENERAL ORDER NO. 4.
Before a general court-martial which convened at Cincinnati,
Ohio, Jan. 17th, 1865, pursuant to special orders Nos. 212, 250,
and 273, series of 1864, from these headquarters, and of which
Lieut.-Col. E. L. Webber, 88th regiment Ohio Vol. Infantry, is
President, was arraigned and tried S. B. Davis alias Willoughby
Cummings; chrrge, being a spy; specification is that said S. B.
Davis alias Willoughby Cummings, a rebel enemy of the United
States, and being an officer of the so-called Confederate States of
America, did, on or about the first day of January, 1865, secretly
and in disguise enter and come within the lines of the regularly
organized military forces of the United States, and within the
States of Ohio and Michigan, and did then and there secretly and
covertly lurk in the dress of a citizen as a spy, and on or about the
12th day of January, 1865, did attempt to leave the said States of
Ohio and Michigaa, with the purpose and object of going to Rich-
mond, Va., there to deliver despatches and information from certain
parties, whose names are unknown, hostile to the Government of the
United States, to Jefferson Davis, President of the so-called Con-
federate States of America, but was arrested as a spy, on or about
the 14th day of January, 1865, at or near Newark, within the said
State of Ohio. To which the accused pleaded as follows :
To the specification guilty, except to the word “lurk,’’ and the
phrase “as a spy,” to the charge not guilty. Finding and sen-
tence: The Court, after mature deliberation on the evidence ad-
ee
ils
reid
SSS
as nah
f seul ee
SESS =
Fey ye
ae
Seok
weer erent
gaat ig Sagat
Ses tenes
rere
Fs
186
duced, tind the accused as follows: Of the specifications guilty, the
members of the Court concurring therein, and the Court do there-
fore sentence him 8. B. Davis alias Willoughby Cummings, to be
hung by the neck until he is dead, at such time and place as the
commanding general may direct, two-thirds of the members of the
court concurring therein.
The proceedings, finding and sentence in the foregoing case of
S. B. Davis alias Willoughby Cummings, are approved and con-
firmed. He will be sent under proper guard by the commander of
the post at Cincinnati, Ohio, and delivered into the custody of Col.
C. W. Hill, commanding at Johnson’s Island, who will see that the
sentence in this case is duly executed at that place, between the
hours of ten o’clock a.m. and three o’clock p.m., on Friday the
17th day of February, A.D. 1865, and make the report thereof to
the commanding-general. By command of
MAJOR-GENERAL HOOKER.
C. H. Porrer, Asst.-Adjt-General.
That the parties referred to in the said General Order as “ cer-
tain parties whose names are unknown, hostile to the Government
of the United States,”’ are these deponents, and the said prisoners ;
and that the despatches and information therein also mentioned
had sole reference to the present enquiry. ‘That the said Lieu-
tenant Davis is still detained in custody by the said prosecuting
parties, and the cruel sentence passed upon him is yet uncommuted,
so far as deponents know or have been informed. ‘That on the
14th day of said January the said prisoners despatched their second
messenger to Richmond aforesaid, and for the purposes already
mentioned, from whom they have as yet heard no tidings whatsoever.
That on the 17th day of said January the prisoners despatched
their third messenger to Richmond aforesaid, and that they have
received information that he left Washington for his first attempt
to penetrate through the lines of the prosecuting parties on the 21st
day of said January ; but that they have not heard of or from him
since that period. ‘That on the 24th day of said January, the
same being the ‘lay after they were informed of the capture of
Lieutenant Davis, the said prisoners sent off their fourth messenger
to Richmond aforesaid, of or from whom they have since heard
nothing. ‘That in addition to the said four messengers, the said
prisoners sent despatches requestir.g the transmission of the evi-
dence referred to in their said affidavit, to the Government of the
said Confederate States at Richmond aforesaid, by a person leay-
ing Montreal early in said month of January, with the intent to
proceed to Richmond on his own affairs, but that the said person
was captured in Wilmington, in the State of North Carolina, by
M
ay
4
ty, the
there-
, to be
as the
of the
ase of
d con-
der of
of Col.
(73 cer-
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ners ;
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uting
uted,
n the
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have
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said
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the
187
the armies of the said prosecuting parties, and was by them re-
leased upon parole in the United States, they being ignorant that
he bore such despatches ; and that he has since made his way back
to Montreal without having been able to deliver such despatches.
That deponents and the said prisoners, determined also to try the
effect of a direct appeal to the President of the said United States
for a pass or permission to a messenger to proceed to Richmond
aforesaid, for the purposes aforesaid, and to that end despatched J.
G. K. Toughton, of Montreal aforesaid, Hsquire, Advocate, to Wash-
ington, and that the said Mr. Houghton did proceed to Washington
and personally saw the President of the United States, and solici-
ted permission to pass on to Richmond aforesaid, for the purpose
aforesaid, but was refused, and was by the United States Govern-
ment ordered to leave the United States, without attempting to
penetrate through to Richmond aforesaid, which he was oonsc-
quently obliged to do. That as appears by the foregoing details,
these deponents and the said prisoners have done and used all due,
and in fact extraordinary diligence, to obtain the passage of a mes-
senger to Richmond afor esaid, for the purposes mentioned in their
said affidavit, and in furtherance of the intent with which they soli-
cited from His Honor the Judge a delay of thirty days, which de-
lay he so humanely and justly ¢ eranted them; but that the prose-
cuting parties, by means of their officials and armies, have prevented
the delay so granted from being made available in any respect to
the prisoners, although deponents and the prisoners are daily ex-
pecting to hear news of some one or other of the messengers who
have hitherto (so far as deponents are aware) escaped from the
agents of the prosecuting parties. That deponents, on behalf of
themselves and their fellow prisoners, respectfully represent that as
the insufficiency of the delay granted to them has entirely resulted
from the acts of the prosecuting parties and their agents, officers,
and soldiers acting under their orders, they being in fact about to
put to death an honorable and gallant officer upon a false and de-
grading charge, for becoming an instrument by means of which
the intent and purpose of the order of His Honor the Judge was to
be carried out; the delay so granted should be extended to a further
period of thirty days, to allow to the prisoners the opportunity of
sending other messengers in lieu of those arrested or obstructed by
‘he prosecuting parties, and to afford time to those who have hith-
erto escaped arrest to make their way back to Canada. And
further deponents saith not, and have signed.
(Signed) BENNET H. YOUNG,
MARCUS SPURR.
Sworn before me at Montreal, this
tenth day of February, 1865.
J. Smitu, J.S.C.
188
That in addition, Mr. John G. K. Houghton had been despatched
to Washington by the prisoners to make a direct appeal to the
President for a pass to allow him to proceed to Richmond, but had
been refused, as appears by the following affidavit :
PROVINCE OF CANADA, DISTRICT OF MONTREAL.
J.ower Canada, to Wit.
In the matter of the demand of the United States of America
for the extradition of Bennett H. Young et. al. :
John G. K. Houghton, of Montreal, in the district of Montreal,
Esquire, Advocate, being duly sworn, deposeth and saith: That
on the twenty-fifth day of January last past, at the written request
of the said prisoners, which is hereto annexed, marked A, deponent
proceeded to Washington for the purpose mentioned in the said
request. That on the thirtieth day of said January deponent wrote
and sent to the Hon. William H. Seward, at Washington aforesaid,
the letter herewith produced, marked B ; which letter was by him
received the same day, and an answer thereto was also on the
same day returned to deponent, which answer this deponent re-
ceived the next day, and which is herewith also produced, marked
C; and that the letter of deponent and the documents therein
referred to were also returned to deponent in the said letter. That
on the thirty-first day of said January, deponent obtained an inter-
view with His Excellency the President of the United States, and
urged upon him to grant the permission which deponent had been
required to procure; But that His Excellency declined to grant
such permission, or even to allow deponent to proceed to General
Grant’s army, that this application for documents might be sent
over to the army of General Lee by flag of truce or otherwise.
His Excellency’s words being in speaking of the said prisoners,
that that they were rebels; that they had been cutting and slashing
around ; and that he did not see that it was any part of his business
to help them. ‘That, however, His Excellency requested deponent
to endeavour to see the Honorable W. H. Seward on the subject,
and gave to deponent a card for Mr. Seward, on which His Excel-
lency wrote the following words: “ Hon. Sec. of State, please see
this gentleman, who is the gentleman from Canada spoken of
yesterday. A. Lincoln. Jan. 31, 1865.” But that on pre-
sentation of the said card by deponent in person at the office of
Mr. Seward, accompanied by a request that deponent might be
permitted, to see that Honorable gentleman, said request was
peremptorily refused. That deponent thereupon applied to the
Charge @’ Affaires for Her Most Gracious Majesty at Washington,
to make to the United States Government the request which de-
ponent had been authorized to make, or to request officially the
merica
ntreal,
: That
equest
ponent
e said
; wrote
resaid,
»y him
on the
nt re-
arked
herein
That
inter-
s, and
been
grant
eneral
> sent
rwise.
oners,
shing
siness
onent
bject,
xcel-
be see
bn of
pre-
ce of
ht be
was
» the
gton,
de-
y the
189
honor of an interview with the Honorable Mr. Seward for deponent,
or to accompany deponent to the department of State to endeavor
to aid deponent in procuring an interview with Mr, Seward,—all of
which requests were refused. That thereupon deponent wrote a
letter to the Honorable Mr. Seward, a copy of which is herewith
produced, marked D, and awaited a reply thereto, in conformity
with its contents, but that no reply thereto was sent to deponent ;
and that deponent was consequently compelled to leave Washington
without having been able to effect the object for which he went
there.
And deponent hath signed.
(Signed) J. G. K. HOUGHTON.
Sworn before me at Montreal, this
tenth day of February, one thou-
sand eight hundred and sixty-five.
(Signed) J. SMITH.
The following are the papers referred to in the foregoing affi-
davit:
A.
Montreal, Jan. 25, 1865.
Mr. J. G. K. Houghton :
Dear Sir,—You will will please proceed to Washington for
the purpose of seeing the President or other official, and, if pos-
sible, obtain a pass permitting you to proceed to Richmond ; and,
if, possible, you will please go on to Richmond, and take the
necessary steps to procure the necessary evidence to our defence.
(Signed) BENNET H. YOUNG,
1st Lieut. P. A. C.S.
MARCUS SPURR,
SQUIRE T. TEVIS,
C. M. SWAH CR,
W. H. HUTCL:INSON.
(True copy—J. G. K. Houghton.)
B
Ebbitt House, Washington, D.C.,
30th Jan. 1865.
Srr,—I have the honor most respectfully to enclose for your
perusal the following documents :
1st. A letter from Messrs. Bennett H. Young, 1st Lieutenant
Pp. A. C. 8.; Marcus Spurr, Squire T. Tevis, C. M. Swager, and
Wm. H. Hutchinson, now prisoners in Montreal, held on an appli-
cation for extradition by the United States, in the matter of the
St. Albans raid.
nena
190
2nd. Stamped copy of an affidavit of Bennett H. Young and
Marcus Spurr, two of the above named prisoners, with the order
of the Judge granting the delay of thirty days in the said affidavit
applied for on behalf of all the above mentioned prisoners.
3rd. Stamped copy of an application by the said prisoners to be
remanded to the gaol at Montreal until the tenth day of February
next, in view of the above mentioned delay for the adduction of
evidence having been granted.
As vour Excellency will perceive, the affidavit enclosed is the
basis of an application for a delay of thirty days in the investiga-
tion of the charge against the said prisoners for the purpose of
procuring evidence from Richmond, as stated in the affidavit, neces-
sary and material for ther defence, and which they are unable to
procure in Montreal or Canada.
The letter referred to authorizes me to proceed to Washington
for the purpose of obtaining a pass to proceed to Richmond with
that object.
And the aim of this present application is to solicit from or
through your Excellency such a pass or letter, or such recommen-
dation to the President of the United States or such other officials
as it may be necessary to apply to in this matter and with this end.
I would respectfully refer your Excellency to the concluding
portion of their affidavit, wherein the prisoners depose that their
sole and only reason for making this application is to place the
whole truthfully before the Judge before whom the proceedings
for extradition are pending ; and I feel confident that in a matter
like this, involving issues of life and death, and grave and momen-
tous questions of international law; one too in which the United
States of America with their whole power are arrayed upon one
side, and five simple soldiers, the senior of whom is but a subaltern
officer, upon the other; your excellency will not refuse, or advise
the President or his Government to refuse, these prisoners an oppor-
tunity for a full and complete exposition of the facts, or permit or
advise that the law officers of a great nation should be permitted
to seek a partial or ex parte judgment.
I would also urge upon your Excellency the fact that, acting in
their interest and under their instructions, I have made this appli-
cation openly, and not sought in any way to evade the military or
civil regulations of the United States.
In the name of humanity, therefore, and relying upon the
universal practice everywhere prevailing of permitting persons
accused of a crime every facility for obtaining evidence necessary
and material for their defence and relying also upon the generosity
which actuates great nations in dealing even with their enemies,
I humbly refer to the enclosed documents and make this applica-
oe
¢ and
order
idavit
to be
puary
on of
is the
sti ga-
se of
eces-
le to
ton.
with
m or
men-
cials
end.
ding
their
the
ings
tter
nen-
ited
one
ern
ise
Dor-
or
ted
rin
li-
or
191
tion for a pass or pern..t to proceed to Richmond, and for all the
necessary documents, letters or recommendations necessary for the
purpose of procuring all the documentary evidence in this case on
behalf of the above mentioned prisoners, whose extradition in the
matter of the St. Albans raid is now sought for; and I assure
your Excellency that I will strictly and conscientiously observe
such orders or regulations as may be given to me for my guidance
while upon the route.
I would also anxiously solicit the favor of an interview with
your Excellency, and an immediate reply, as hours are now of
moment.
I have the honor to be, Sir, your Excellency’s most obedient
servant.
(Signed) J. G. K. HOUGHTON,
Advocate,
Attorney for the prisoners whose extradition in the matter of the
St. Albans raid is now demanded.
To His Excellency W. H. Seward, Secretary of State, U. 8.
(Copy.)
C.
MEMORANDUM.
Department of State, Washington, |
Jan. 80,1865. 5
J. G. K. Houghton, Esq., advocate and attorney for the pri-
soners whose extradition in the matter of the St. Albans murders
and robberies has been demanded, is informed that the Government
of the United States can hold no communication or correspondence
with him upon that subject. ‘The prisoners, if they submit them-
selves to the authority of the United States, need no foreign media-
tion. Sv iong as they remain under the protection of a foreign
government, and a demand upon that government for their delivery
to the United States is pending, communications concerning them
can be received only from that foreign government through the
customary channels of national intercourse.
A copy of the papers submitted by Mr. Houghton have been
taken, and the originals are herewith remitted to him, and he is
expected to leave the United States without crossing the military
lines, or attempting to enter the scene of insurrection, or to com-
municate with the insurgents.
(Signed) WILLIAM H. SEWARD.
(Copy.)
ET en Ry a
ee
a — =
Te ~
me
>
Cereey pre
es
Fe ee,
192
D
Room No. 38, Ebbitt House,
Washington, D.C., January 31, 1865.
To the Hon. W. H. Seward, Secretary of State, US. :
Sir,—I have the honor to acknowledge the receipt of your com-
munication marked ‘“* Memorandum,” and dated Department of State
Washington, January 30th, 1865, informing me, amongst other
things, that the Government of the United States can hold no com-
munication with me upon the subject of the St. Albans’ raid, and
also that I am expected to leave the United States without crossing
the military lines or attempting to enter the scene of insurrection,
or to communicate with the insurgonts.
I would, however, most respectfully submit for your Excellency’s
consideration, that this morning, at about the hour of ten o’clock,
a.m., at an interview with His Excellency the President of the
United States, the President, although refusing me the pass or
permit to proceed to Richmond, for which I have applied to your
Excellency, and then did apply, referred me to you, and gave me a
card of recommendation or order, addressed to the Honorable
Seerctary of State, of which the following is a copy:
‘¢ Hon. Secretary of State :
‘* Please see this gentleman, who is the gentleman from Canada
spoken of yesterday.
*¢ (Signed) A. LINCOLN.
“ January, 31st, 1865.”
Previously to receiving your memorandum, I presented this card
to your Excellency’s Secretary, to whom I was referred on the
first occasion of my seeking an interview.
That gentleman, however, declined to report it to yourself, or in
any way to facilitate an interview.
I would respectfully, but firmly, again ask for an interview with
your Excellency, and an opportunity of personally urging upon
your favorable consideration my application for a pass to Richmond,
for the purpose of procuring the necessary and material evidence
required by my clients; and I would venture to urge that if any
technical or diplomatic obstacle ever did exist against my holding
any communication with your Excellency or the Governmeni of the
United States, this recommendation or order signed by the Chief
Executive officer must certainly waive and annul it.
I would also remark that the prisoners for whom I am acting are
not now under the protection of a foreign government, technically
speaking; but that they are held by the Government of Canada,
subject to the provisions of a treaty for the extradition of felons, and
by that treaty their guilt must be established before an extradition
r com-
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193
can be made, and that the proof of their culpability and liability to
extradition under that treaty, or their freedom from its provisions,
can only be maintained by a full exposition of all the facts of the
case, and that the object of my application for a pass is simply to
enable them to prepare such an exposition. The case is a simple
action at law. According to the spirit of that treaty then, and by
law and justice, the United States being the plaintiffs, and the pri-
soners the defendants, the legal agents of the defendants should not
be precluded by the plaintiffs from any opportunity of procuring
documentary evidence necessary and material for their defence.
I would also respectfully, but firmly, except to the commence-
ment of your Excellency’s memorandum, in which I am styled
advocate and attorney for the prisoners whose extradition in the
matter of the St. Albans murders and robberies is now demanded,
and would remind your Excellency, that the acts with which they
are charged cannot be officially termed murders and robberies, until
they are so pronounced by the judicial tribunal before which they
are now arraigned.
On behalf of these prisoners, therefore, while thanking your
Excellency for the assurance that if they submit themselves to the
authority of the United States they need no foreign mediation, I
renew my application for a pass to Richmond for the purpose of
obtaining that evidence which is necessary and material for their
defence ; and as hours are now of consequence, I shall assume that
a failure to receive the necessary pass or documents by four o’clock
p-m. to-morrow, is of itself a second distinct refusal to this my second
written application to your Excellency for that purpose, and in that
event shall forthwith leave Washington en route for Montreal.
I have the honor to be, Sir,
Your Excellency’s most obedient servant,
(Signed) J. G. K. HOUGHTON,
Advocate,
(Attorney for prisoners whose extradition in the matter of the St.
Albans raid has been demanded).
[Copy. ]
The Hon. Mr. Abboté then stated that on these affidavits it was
submitted that the prisoners had done every thing in their power
to carry out the object for which delay had been granted them,
and that such delay should be extended for a further period of
thirty days.
Mr. Johnson, Q.C., rose to oppose the application, contending
that it was a mere question whether our laws were sufficient to give
effect to the treaty with a foreign power. If this application could
be made now, it could be made a hundred times, and be as perfectly
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194
effectual the hundredth time. ‘The prisoners were resisting the ap-
plication that the investigation should proceed, and complaining that
his Honor did not enforce a jurisdiction he did not possess. The
prisoners might oppose their trial for want of such evidence in their
own country, but not here. It had been evident from the first that
the production of the evidence would be denied. Mr. Seward said
in effect: “ We will not furnish you with evidence to elude trial,
but you shall have it when you are placed on trial.” And that
was no doubt a correct view of the law with regard to the duty of
the American government.
Mr. Devlin followed, saying that when the application for delay
was granted on the 10th of January, he had said that on the ex-
piration of thirty days they would be prepared with another. If
this application was granted, the ingenuity of the Counsel for the
defence would, at the end of the thirty days, furnish them with
another pretext. They had had since the 19th of October to pre-
pare for defence. Could they, after this indulgence, insist on
another appllication ? He understood that delay had been granted
to the prisoners on the understanding that when the delay had ex-
pired they should proceed with their defence, in accordance with
the judgment of the Court on the 10th January. He trusted it
would not be suspended on account of Mr. Houghton’s being re-
fused to be allowed to proceed to Richmond. Was it the fault of
the Court? The want of documents from Richmond was immate- ©
rial, as the prisoners were not going to be tried, but were only put
upon a preliminary investigation. Even supposing the offence had
been committed in this Province, the Court would not have granted
the delays which it had already done with so much leniency towards
the prisoners, who relied more on the ingenuity of their Counsel
than the goodness of their cause. If the application was granted,
many would come to the conclusion that the proceedings would
never arrive at that stage when investigation would be permitted.
In conclusion, he would say that if the Counsel for the defence
managed to get another delay they would have done their part
towards the abrogation of the extradition treaty ; and he asked his
Honor to refuse the application.
Mr. Bethune said, that since the time of the first application,
the case of Burley had been decided by four Judges, adopting the
view that questions, such as the prisoners desired to raise, could
only be tried in the United States when they were put upon their
trial. He apprehended his Honor did not pledge himself when he
granted the first application for delay, to grant another if that
failed. When the former application was made, there was some
hope that the evidence might be obtained ; now, there was none.
He then went on to review the efforts made by the prisoners on
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195
this behalf. A direct application had been made to the U. 8.
Government, and refused, and the ports of the Confederacy were
blockaded. If his Honor granted the application, the result would
be a mere delay of thirty days. The U. 8. Government had said
in reality, When you put yourselves within our jurisdiction, you
shall have the evidence you require. Could his Honor presume
the prisoners would be unfairly dealt with? In the case of the
Savannah, the prisoners had not been convicted, as no verdict was
returned, because the jury were divided. In conclusion, he again
urged that delay would be ineffectual, and should not be granted.
The Hon. Mr. Abbott said, that the affidavit stated that the
prisoners had reason to believe that some of those who had been
sent might yet be successful m reaching Richmond, and asked
additional time to send others. He then went on to refute the
propositions of the learned gentlemen who had preceded him, which
he argued were threefold, namely, that the prisoners were not en-
titled to any investigation as to their guilt; that this being the fact,
there ought to have been no delay; and that further delay could
be of no use, since the evidence required could not be procured.
The Court, he said, ought to be put in possession of the whole facts
of the case, before it could decide if the offence was one which
came under the extradition treaty. ‘he fact was not denied that
the prisoners made an attack upon the town of St. Albans, and
partially sacked and set it on fire; but the additional facts which
they desired to prove, namely, that they were Confederute soldiers,
acting under a duly commissioned officer, authorized by their
government, through its agents; were denied. ‘They contended
they could show that they were foreigners guoad the people of
the Federal States; owing their allegiance to a nation at war with
the Federal States ;—soldiers of that nation; and acting under
the orders of the constituted authorities of that nation. Sup-
posing these facts to be proved, would they not conclusively show
that there had been no offence within the meaning of the Ashburton
Treaty, and therefore, that the Treaty and the statutes based upon
it, did not apply to this case at all? It was impossible to deny
this; and his learned friend would not contend they ought to be
extradited, if the allegations they made were true.
Mr. Bethune said that was a question the United States had a
right to try, and that it could have no effect here.
Hon. Mr. Abbott said, he certainly did not expect to hear his
learned friend assume such a position. It would place the Judge
in the position of a mere ministerial officer ; entirely deprive him
of all judicial discretion ; and render the limitation of the right of
demanding extradition,—which was effected by the precise descrip-
tion of the crimes for which it might be demanded,—practically a
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196
dead letter. Every general in the Confederate armies, who took
refuge here, could be extradited as a murderer. Such a doctrine,
he ventured to say, was entirely unsustained either by principle or
precedent, by the treaty itself, or by the mode in which it had been
carried out. And if the statements of the prisoners were true
and were proved, their extradition would be revolting to the sense
of justice of the civilized world.
The presumption of a fair trial was one which we were certainly
bound to recognize, and did recognize in an eminent degree in the
Courts of the United States, when the passions of the people were
not aroused ; but it was a mockery of the most cruel kind to talk of
such a trial in the case of these men. They would be placed before
a Court and jury personally hostile to them ; composed of enemies
inflamed against them to an unprecedented degree by the virulence
of the struggle between the two sections. The fair trial they would
probably get would be such a trial as Lieut. Davis got, who was
under sentence of death, merely for asking for evidence for them ;
and the severity of his treatment for a minor offence, shewed what
they might expect who had sacked and burned a. Northern town.
Or they would get such a trial as the crews of the privateers and
men of war of the Confederate States got, who in the face of their
recognition as lawful belligerents by the civilized world, and by the
clearest principles of international law, were put upon their trial as
pirates—and were so declared to be from the Bench. And though
the crew of the Savannah had escaped conviction notwithstanding
the Judge’s charge, in consequence of a difference of opinion among
the jury, others had actually been convicted as pirates.
If the evidence required was material, the Judge had acted wisely
and humanely in granting delay. And now that a further delay
was asked, because the first had proved insufficient—those who
resisted the application were those, who by their own acts had ren-
dered further delay necessary. Why did the prisoners want delay ?
Because they were refused by the prosecutors a pass for one mes-
senger ; because the prosecutors had hanged or were about to hang
another, and because their precautions were so carefully taken to
prevent communication that the others had not been successful.
Such an objection from them was a violation of the simplest rules
of justice, and should receive no weight from a Court administer-
ing justice by those rules.
Mr. Laflamme, Q.C., and Mr. Kerr followed on the same side.
His Honor Judge Smith said, that in granting the former appli-
cation for delay he had carefully abstained from giving an opinion
as to the materiality of the evidence proposed to be offered; and
had not in any respect admitted any obligation to grant the delay
that had been asked for, and had been awarded. No precedent or
2a PRR OX actos
= (TT EF coat IMS ER aaa obit “ oe ‘
197
argument could, therefore, be drawn from that, in favor of the pre-
sent application. But the argument had taken such a turn that he
now felt called upon to intimate, at least in general terms, what his
views upon it were. He certainly could not admit that his func-
tions were purely ministerial, and that upon certain affidavits or
depositions being laid before him, he was bound to commit for extra-
dition. He had the right, and it was his duty, to hear all that was
to be said on both sides, and to judge whether reasonable cause
existed for believing that one of the crimes specified in the Ashbur-
ton treaty had been committed, and that the prisoners were the
persons who had committed it. He referred to the familiar illus-
tration he had before used of a person killing another and being
charged with murder—if it was shewn that such a person had killed
the deceased in self-defence, it would be impossible for him to order
his extradition. So also in the case of a woman killing a man in
defence of her chastity. He would not be satisfied with the evi-
dence that she had taken life—if evidence was also produced to
shew that the cause for which she did so, justified it; or rather
took away from the act the characteristic of the crime of murder.
This was his opinion, and he could not feel himself justified in
departing from it, whatever may have been the nature of any
recent decision upon the subject. So it would be in the present
case also, if by evidence placed before him the acts committed by
the prisoners were withdrawn from the purview of ordinary munici-
pal law, and shewn to be properly liable to be judged by the prin-
ciples of international law alone. The treaty of extradition was
intended to meet cases of ordinary crime—of the nature specified
in it, not offences committed against each other by belligerents,
recognized by Great Britain as being engaged in warfare. This
‘was the doctrine evidently held by all the English judges in the
Gerity case. The evidence of the act done in that case was con-
clusive ; while the evidence of any belligerent character in the
assailants was of the feeblest character, consisting merely ina state-
ment that they acted on behalf of the Confederate States, which, it
was asserted, was equivalent to hoisting tne Confederate flag; and
it was for that reason that the Judges declared that they could not
say that the magistrate had not sufficient grounds for committing
them. But if they had been prepared with proof of their authority
— if they had produced their commission from the Confederate Gov-
ernment; it was plain from the language of the Judges that their
conclusion upon that point would have been different. But the
affidavits produced do not state with precision what was the exact
nature of the evidence to be adduced ; and he was, therefore, unable
to judge whether or no that evidence, if obtained, would be material
to the issue. As to the other branch of the argument, it should be
iin serbian A
198
remembered that the United States were unhappily engaged in a
war of gigantic proportions, and that it appeared to be a part of the
policy of that war to beleaguer the capital city of the Confederate
States as closely as possible. It was probably impossible to relax
this state of things, and in any case it was a matter over which he
could exercise no control, and which could not affect his decision.
If he held that the action of the Federal Government in pre-
venting access to Richmond should entitle the prisoners to further
delay—he should virtually hold that the investigation could not
be proceeded with till the war terminated. He must, therefore,
refuse the application for further delay.
It was then agreed that the examination of the witnesses should
be proceeded with on the following morning at half-past ten. And
the Court adjourned.
EVIDENCE FOR THE DEFENCE.
11th February, 1865.
John G. K. Houghton, of Montreal, Advocate.—On the twenty-
fifth of January last, I was engaged to proceed to Washington to
get a pass to go to Richmond, to obtain the documents necessary
for the prisoners.
Mr. Bethune objected to this as irregular and irrelevant. Ob-
jection overruled.
I arrived in Washington on Saturday morning, and imme-
diately attempted to obtain an interview with the President, but
did not succeed until the thirty-first of January, when I had
an interview with the President, and asked for a pass to go to
Richmond for the necessary evidence for the St. Albans raid. The
President refused to give me a pass. I used every effort to induce
the President to give me this pass; he said “ No, I will not; these
men are rebels, they go cutting and slashing around, and I do not
see that it is any part of my business to help them ;”’ these are the
exact words. I again urged my request upon the President, and
finding that I was unable to succeed, I asked for a pass to go to
General Grant’s head quarters, and from thence to forward a mes-
senger to Richmond to procure evidence ; the President refused.
T endeavored to influence him again, when he said ‘‘ You can see the
Secretary of State,” and distinctly refused to give ithimself. Ihad
some correspondence with the Secretary of State, the Honorable
Mr. Seward. The purport of this correspondence is correctly shown
by the papers produced with my affidavit yesterday. The evidence
I was to obtain was documentary. The principal instrument of
evidence I was to obtain, was the copy of any general order of the
Government of the Confederate States recognizing what is known
as the St. Albans raid, that is the acts of these prisioners.
Cross-ecamined under reserve. —I was employed by the prisoners
oH
199
a ate
2 ——— =
in a | through their agents, by a letter which I fyled with my affidavit
the yesterday. I have not personally had any conversation with the |
rate | prisoners. I was never informed by the prisoners, through their {
olax agents, or by any one, that President Davis had refused to recog- A
1 he Y nize the St. Albans raid, and further, I say not, and have signed. Ht
ion. (Signed) J. G. K. HOUGHTON. : f
pre- i we
ther q William W. Cleary, of Richmond.—I am an Attorney and th
not ; Counsellor-at-Law. I have occupied myself lately in endeavouring :
ore, to procure the passage of a messenger to Richmond on behalf of A
the prisoners. One Lieut. Samuel B. Davis was dispatched on the Ba
ould 10th of January last from Toronto; he carried through a written he
And paper to the Confederate government, asking that the authority for | a
the St. Albans raid should be sent to Montreal before the tenth of aa
this month ; the precise document required was any general order al
that might have issued authorizing the St. Albans raid. On the Wi
D. 14th of January last, another gentleman was sent, carrying the pt
nty- same request, and the same paper. On the 15th, a third messen- ais
n to ger was sent for that purpose; and on the 22nd or 28rd January eae:
sary last, we heard that said i.ieutenant Davis had been captured, and Ae
thereupon another messeiger was dispatched to Richmond for the Beit
Ob- same purpose. No intelligence has been received of any of them “/
having succeeded in reaching Richmond, or as to their fate, except 8
nme- Davis. Davis had previously passed safely through the Federal a
but lines. Mie
had Cross-examined under reserve of objections. UH
0 to Question.—What are the names and places of abode and occu- 1h
The pation of the three messengers other than the said Davis, whom he
uce you assert were dispatched to Richmond ? Hh
ese Objected by Mr. Abbott on the grounds—1st, that an answer HEE
not would defeat the object of their being sent; 2nd, would imperil
the their lives; 8rd, that their names and abode were immaterial
and Objections maintained.
D to The witness was then ordered to stand down for the present. |
es-
ed. William L. T'. Price.—For the last two years I have been a i
the soldier in the Confederate service. At the time I was captured, 4 li
iad I belonged to General Morgan’s command. I know Bennet H. Hike
ble Young, one of the prisoners. I have known him as far back as my if
wn memory extends. He is a native of Jessamine county, State of bled
ce Kentucky, of which I am also a native. I did not belong to the i
of same command as Young; but I met him in the service. He was
he a soldier in the Confederate army. He belonged at that time to va
mn Morgan’s command. ‘The date of my meeting with him was pre- ty
vious to my joining that command. I was one of the soldiers under i
13 General Morgan during his last raid in Kentucky. The advanced ah
200
guards were dressed in citizens clothing, and so were Morgan’s
command always dressed, except some Yankee garments and over-
coats. Bennett H. Young first raised the Confederate flag in
Jessamine County—that is, he was the first person that raised the
Confederate flag there that I know of. f
Cross-eramined—I have been in Canada six weeks. I stopped
: at a private boarding house in London, Canada West. I was never :
i} in Canada before, or in the State of Vermont. I know also Mr.
Teavis, who comes from Jessamine county also. I have heard of
Mr. Spurr. I have not seen Bennett H. Young for twenty months, 3
until I saw him here. I then saw him engaged in a raid under '
Colonel Cluke, in the uniform used by Morgan’s command. The
overcoats worn by the command of Morgan, mentioned in my exami-
nation in chief were Yankee overcoats. Morgan’s command generally
wear the clothes of citizens. They are gentlemen.
Question.—Did Morgan’s command carry on raids by going into
towns by twos and threes, registering themselves at hotels under
false names, and carrying only, as arms, concealed weapons ?
Answer.—I do not know that it was a regular policy of the
command.
(Signed) | WILLIAM L. PRICE.
Henry W. Allen.—I am aged nineteen. I was first under the
command of General Buford; afterwards in the 14th Kentucky
cavalry. I was also engaged as a clerk in the Adjutant-General’s
office. I know two of the prisoners, namely, Marcus Spurr
and Bennett H. Young. I knew them as soldiers in the Con-
federate army; they belonged to the State of Kentucky. I
qa | never saw Young in the army. I saw him in prison, as a prisoner
ai of war. They were in the 8th Kentucky cavalry. I know per-
ae sonally that Marcus Spurr was in that regiment. I ascertained
| when in prison, that Young belonged to that regiment. The
prisoners were distributed in the prison according to their regi-
i ments and companies when I met Young there, and he was classified
ae as belonging to that regiment.
Cross-examined.—I now reside in the city of Toronto, where I
have lived for about a month. I came to Canada on the tenth of
December last. I saw said Bennett H. Young and Marcus Spurr
for the last time in the fall of 1863, at Camp Douglas, Illinois ;
they escaped from there. I am not aware that they came to Can-
ada then. I have heard that the said Young was in Toronto in
the winter of 1863 and 1864; but I do not know it personally.
And have signed.
We nile amiga
(Signed) H.W. ALLEN.
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201
William Pope Wallace.—I knew one of the prisoners in the Con-
federate States, namely : Mr. Huntley, who answers to the name of
Hutchinson. I saw him at Wilmington, North Carolina, in Febru-
ary, 1864. His name in full is W. H. Huntley. I do not know
what his first initial represents, but I understand his second to be
Hutchinson ; he is a citizen of Georgia. He was a soldier in the
Confederate army when I saw him, in 1864. He exhibited to me
some papers at Wilmington ; one of them was a detail by which he
was sent out of the Confederacy. A detail, as I understand it, is
an order from military men to their subordinates to do any thing.
The paper now produced and marked K was shewn to me by said
Hutchinson at Wilmington. (Paper K is a passport to Wm. H.
Huntley dated January, 1864, signed by James A. Seddon,
secretary of war, and J. P. Benjamin, secretary of State, and sealed
with the seal of the Confederate States). I had previously been an
officer in General Preston’s Staff, and had recently resigned. I have
frequently seen documents of the same description as document K.
It is known as a passport. The seal appended +o it I do not
recognize. I suppose I have seen frequently such seals, but I
never took particular notice of them. I recognize one of the signa-
tures appended to that document, that is, the signature of James
A. Seddon, secretary of war, which I have seen very frequently,
and am acquainted with, and to the best of my knowledge and
belief, it is the genuine signature of Mr. Seddon, secretary of war.
Cross-examined under reserve.—I have been in Canada since
June last, with the exception of two month’s absence from the
Province. I know all the prisoners. Three of them I only knew
since they were arrested for the St. Albans raid, that is Mr. Spurr,
Teavis and Swager, the other two, I knew before, that is Huntley
and Young. I formed the acquaintance of the three first named
about two months after their arrest and while they were in gaol here.
The Wallace arrested before is no relation of mine. I was absent
for two months previous to Christmas last. I do not know where
any of the prisoners resided before the nineteenth of October, or
six months prior thereto. I saw Young and Huntley, in Halifax,
about May last. I do not know where they were going, they were
staying at a Hotel; they were not engaged in any business.
Mr. Huntley said he was going to Bermuda, and Bennett H.
Young said he was going to try and run the blockade. I was in
Montreal, on the 19th of October last; I left Montreal, about six
or eight or ten days after the raid, for Halifax, by way of Portland,
and I returned by St. John’s on the overland route. My compa-
nions were General Preston’s family. I know all the prisoners here
and one who is absent, but who was also engaged in the raid of
St. Albans. I do not know how many were engaged in this raid.
(Signed,) W. P. WALLACE.
202
Joseph F. Bettesworth.—I have been examined before in this
case. I have already said that I knew Bennett H. Young and
Marcus Spurr in Chicago in August last. At that time there were
a good many Confederate soldiers there. A large number were
collected there for some special purpose. ‘They went on with the
organization for which they were assembled there. One part of
the object for which they were there has since been carried out, as
I understand. Their chief object there was to release the prisoners
at Camp Douglas. All the Confederate soldiers there were in
communication with each other, and knew what was going on.
Prisoners Young and Spurr were there also, and Collins, who was
previously in custody on a charge before Judge Coursol. After
the expedition for the attempt to release the prisoners had been
put off, I heard from several persons there (Confederate soldiers)
that said Young was to lead a party on some other expedition,
and that there was to be a division of the Confederate soldiers
there, before said Young undertook this other expedition. This
was well understood and discussed among the Confederate soldiers,
and that said Young had a commission and was going to lead a
party. I heard one Confederate soldier state that he had been
requested to go on this expedition with Mr. Young, and he subse-
quently did go. This was Mr. Collins. I was not asked to go on
Mr. Young’s expedition; that is, I cannot say that I was asked.
I had some conversation with Mr. Collins on the subject. Mr.
Collins told me in this conversation that Mr. Young had a number
of soldiers going with him, and that he, Collins, had another expe-
dition in view, and did not intend joining Young at that time.
I understood these raids were all authorized by the Confederate
Government. They were not proposed to me for any private
benefit, and we intended making them for the purpose of serving
our Government, and not ourselves. I did not understand the
precise spot Mr. Young was to attack, but it was on some part of
the Northern frontier of the United States. The arms and mate-
rial of war stored in Chicago were, I understand, for the purpose of
these raids, and for the use of any recruits we might get.
Cross examination declined.—And further saith not, and hath
signed.
(Signed, ) J. F. BETTESWORTH.
Thomas M, Stone.—I resided in Richmond, Kentucky, up to
the time ‘of the breaking out of the war, and part of the time since
in the Confederate army, part of the time in prison, and the latter
portion of it in Canada. I escaped from prison at Camp Douglass,
and came from Chicago to Canada. I belonged to the seventh
Kentucky cavalry, second brigade of Morgan’s command. I know
n this
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sli the prisoners. I recognize the prisoner, Mr. Teavis, as being a
relative of mine, and having been in the same Company with
myself, in the army, and I have seen him also in several battles.
He was taken prisoner by the Federals on the Ohio Raid in July,
1863. He was taken to Camp Morton. He was a citizen of the
State of Kentucky, and from the same County as myself. I saw
all five prisoners in the United States last autumn, four of them
in Chicago last August, vize: Young, Spurr, Hutchinson, and
Teavis, and I saw Swager in Vincennes, in Indiana. By Hutch-
inson, I mean the prisoner answering to that name on this examina-
tion. Ido not know by what name he was known in Chicago, but
his real name is Huntley. There were probably sixty or seventy
Confederate soldiers in Chicago at the time mentioned. I saw about
fifty myself, and I understood there were many more there at the
time ; our object was to release the prisoners at Camp Douglass.—
This expedition failed, and upon its failure another expedition was
organized by Mr. Young, and another was organized by another
gentleman, whose name I do not wish to mention. Mr. Young’s
expedition was against the town of St. Albans, but upon a little
more extended plan than was carried out; one of the objects was
to burn the town. I spoke with Mr. Young about the expedition
against St. Albans—this was at Chicago ; before he left, he said he
was going immediately to St. Albans, and that he had the men to
go. I was spoken to by Mr. Young to be one of the party, and I
also spoke to Captain Collins to join the party—the same Collins
who was a prisoner here in December last. I decided at that time
to join Young’s expedition, but finally changed my mind, and went
down to Southern Illinois. Collins went with me and left me there,
the next I heard of him was that he was a prisoner here. Young
was making up this party in the capacity of commander of it. I
knew that Mr. Young had the authority to raise the Company in
question. I saw his authority in writing, in August of last year.—
being shewn the paper fyled by Mr. Young at his voluntary state-
ment, and identified by the letter N on the back of it; I say that
it is the authority I saw, and am sure that it is the identical paper.
Mr. Young himself shewed it to me. I read it and examined it at
the time he shewed it to me, which was before he went to Chicago-
I do not remember positively whether he shewed me any other
instructions at that time ; but I am positive that he did not shew
me his commission. He shewed me the paper to satisfy me that he
had authority from Richmond, for the purpose of collecting a party
as stated in the paper. He stated to me that his instructions were,
when he had collected the party, to réport to the Honorable C. C.
Clay, who was Commissioner for the Confederate States here, and
to take his instructions from him. The fact of Mr. Young holding
SE a
—
eeigeeade pee
linha sna Riiniit i
204
a commission from the Confederate States was known among the
Confederates in Chicago, when he was raising his Company there.
There were several depots of arms there, that is in Chicayo, for the
use of the Confederate soldiers. I did not see them myself, but it
was generally known among the Confederates there that they
existed, and I saw them afterwards when they were captured .by
the Federals in November following. I understood from Young
at Chicago that he was to receive his instructions from said Mr.
Clay, as he had done before. I cannot say that I understoqd from
Mr. Young at Chicago, that his party was complete ; but I under-
stood that he had enough to carry out his expedition. I understood
that all the prisoners belonged to Morgan’s command except Hutch-
inson or Huntley. I heard it reported, and it was generally under-
stood that Mr. Young had been a prisoner at Camp Douglass, and
escaped, and Mr. Spurr also. I saw a good deal of service when
in the army. It would be impossible to describe the dress of Mor-
gan’s command, it was so varied ; the articles of war provided for a
uniform for the command, but the Quarter Master’s department
never issued them; each man dressed according to his own taste
or according to his means of providing them; some would have
some part of the Confederate uniform, remainder plain, some in
colors. I have seen a whole regiment dressed in Yankee uniform,
this of course was after a raid. The principal source from which
clothing was obtained, was from captures from the enemy. From
the Virginia line to the Mississippi, petty warfare and depredations
were carried on by the Federal troops, independent of the action
of the regular army. Bands carrying on this kind of warfare were
chiefly to be found in Western Virginia, Middle Tennessee, East-
ern Kentucky, and the Northern portion of Alabama. It would
be impossible to describe the nature of this warfare in general terms,
except every kind of villainy.
Objected to by Mr. Johnson and Mr. Bethune.
Question.—State if you know any, of your personal knowledge,.
particulars respecting this species of warfare and depredations, and
particularly cases in which private individuals and banks were
robbed; old men, women, and children shot or put to death, though
unarmed and unoffending ; and the property of private individuals
wantonly destroyed by the Federal troops, previous to the 19th day
of October last.
The question was objected to by the Counsel for the Uuited
States, and the objection was maintained.
The Counsel of the United States object to the whole of this
testimony, as irrelevant and illegal; and consequently decline to
cross-examine this witness.
(Signed) THOMAS M. STONE.
ig the
there.
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Young
id Mr.
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205
Charles Albert Withers.—1 am a captain in the army of the
Confederate States. I was adjutant-general on the staff of General
John Morgan at the time of his death; and I was taken prisoner
when the General was killed, on the fourth day of September last.
I identity the prisoner, Charles Moore Swager. I saw him first in
the Confederate army of the Potomac, at the commencement of the
war; and I was also in the same regiment: he was in the first
Kentucky Infantry. He was afterwards, in December, 1862, in
Company H, of the Second Kentucky Infantry. He comes from
Kentucky, I believe. I am acquainted with the signature of James
A. Seddon, Secretary of War of the Confederate States. Being
shown and having examined the document marked M, produced by
Young at his voluntary statement, I declare the signature of James
A. Seddon, Secretary of War, thereto appended, to be genuine.
Being in the Adjutant-General’s department, I have seen all the
commissions. Instructions and orders for our command passed
through my hands officially, and I have consequently seen a great
many of his signatures. I know Mr. Seddon personally. I have
been in his office frequently, and seen him writing. The document,
M, is the only kind of commission we have in our service ; it is
simply a notification of appointment. I have never seen any other
kind of commission ; nor is there any other legal commission than
this, except that General Morgan was permitted to appoint his own
subalterns ; which appointments were afterwards ratified in the usual
form ; and such documents as document M, were then used. I have
examined the paper, M, and to the best of my knowledge and belief,
it is a genuine document. I have no doubt of it: I have four com-
missions like it myself. When these commissions are issued, there
is an oath accompanies them, which has to be filled up and re-
turned. Being shown, and having examined the document N,
produced by Young at his voluntary statement, I declare the
signature thereto appended is genuine. I have not a particle of
doubt about it; I have seen it too often. It is what is called and
known as a detail for special service. From my knowledge of the
discipline and management of the Confederate army, I can state
that details of this description are of very ordinary occurrence.
Whenever any special service is required, a written detail issues
from the Secretary of War, or from an intermediate commander ;
and sometimes it issues in the form of the paper N which is what
I call a circular order; and sometimes a special order is issued,
which is numbered and marked. ‘The paper N is an order for
special service ; but as the service is not mentioned, it would
come under the order of special or secret service. It is the
practice for Confederate officers to organize and send out small
expeditions on secret service, ranging from three to thirty men,
<=
as
206
=
within the enemy’s lines. I have myself frequently done so, acting
as Adjutant-General. Captain Collins, who was a prisoner here in
December, was once sent out by me on special service ; and com-
manded a party of twenty-three men. These secret expeditions were
always sent into the enemy’s lines ; sometimes to capture prisoners,
burn bridges, for scouting purposes, to destroy communications, and
telegraphs ; and on one occasion I sent an expedition to burn a
town, under General Morgan’s orders; there was about fifty men.
These expeditions were intended to harass the enemy in every
possible way. Sometime in 1862, orders were issued from the
Secretary of War and Adjutant General, to form small parties of
men as partizan Rangers. I know a number of these men and of
companies of partizan Rangers which were in operation ; these com-
panies are not attached to the regular army ; each company is under
its own officer these officers are seldom above the rank of Captain.
From the commission and paper N shewn me, I should consider
Young and his party to be a party of this description on special ser-
vice. Parties sent into the enemy’s lines on special service never wear
any uniform. Being shewn and having examined the paper writing
now produced, and marked O, I recognize the signature thereto as
the signature of said Mr. Seddon, Secretary of War. I have no
doubt about it; itis genuine. I know the Honorable C. C. Clay,
the gentleman mentioned in paper QO. I knew him when he was
Senator for Alabama in the Confederate States Senate. I do not
know what position he held here last autumn. I saw him here
0 nnn SS eg Se ie i
PAPER O. Confederate States of America,
War Department,
Richmond, Va., June 16th, 1864.
To Lieut. Bennett H. Young ;
Lieut. ,—
You have been appointed temporarily first Lieut. in the Pro-
visional Army for special service. You will proceed without delay
by the route already indicated to you, and report to C. C. Clay,
jun., for orders. You will collect together such Confederate soldiers
' who have escaped from the enemy, not exceeding twenty in number,
aR: that you may deem suitable for that purpose, and execute such
enterprises as may be indicated to you. You will take care to
organize within the territory of the enemy, to violate none of the
neutrality laws, and obey implicitly his instructions. You and
your men will receive transportation and customary rations, and
clothing or commutation therefor.
JAMES A. SEDDON,
Sec. of War.
at dil SL
ee
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ab cs ees
cling
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um a
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ve no
Clay,
1e was
do not
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Clay,
Idiers
aber,
such
re to
of the
and
, and
ar.
207
about two months ago. I am aware that there is a state of war
existing between the Northern States and the Southern, and has
been since 1861. We have in the South a President, Senate, and
House of Representatives, sitting at Richmond, and have a regularly
organized government aiid army from the highest to the lowest
grades. I know that in June last, Mr. James A. Seddon was
Secretary of War for the Richmond Government, and Mr. Davis
the President. I am well acquainted with the mode in which the
war has been carried on by the Federal troops agaist the South.
Question.—Are you aware whether or no petty warfare and a
series of petty depredations were systematically carried on by the
Northern soldiers in Southern territory, in which private property
was constantly taken or destroyed ?
Objected to as illegal, irrelevant, and foreign to the issues in
this cause. Objection maintained.
Question.—Can you state any particular instances in which
parties of Northern soldiers have entered the Southern lines in dis-
guise, and taken or destroyed private property ?
Objected to. Objection maintained.
Question.—Is it not the fact, that during last summer an im-
mense extent of Southern territory was wholly devastated by
Northern troops, and private property to an immense value appro-
priated by them or wantonly destroyed ¢
Objected to. Objection maintained.
I do not know Mr. Clay’s handwriting.
The Counsel of the United States object to the whole of this
testimony as irrelevant and illegal, and consequently decline to
cross-examine.
(Signed) C. A. WITHERS.
Wilkam H. Carroll :—I was formerly an officer in the Confeder-
ate army, holding the rank of Brigadier General. I commanded a
brigade, atone time. Mr. James A. Seddon was Secretary of War
for the States in June last. Iam acquainted with him, and have
seen him write and sign hisname. I knowhis signature when I see it.
Being shewn, and having examined the documents M, N and QO, I
should say that the signatures to those documents are the genuine
signatures of James A. Seddon. I might be imposed upon by his
signature, but I have not the slightest doubt that they are the genuine
signatures of the said James A. Seddon. I have frequently seen such
papers before. The paper M is the usual and customary form of
commission to an officer ; it is the same as the one I received myself
as Brigadier-General. An oath accompanies it, which is returned by
the officer. The officer acts under the paper, and remains an officer
until the Senate rejects such appointment. Ibelieve the Senate is
208
now sitting at its first session since the date of that paper. I have
seen all the said papers before marked M, N and O; it was some
two or three days after the St. Albans raid. ‘The man who shewed
them to me, said they came from Toronto; they were shown to me
to see if they were genuine, end to say what should be done with them,
and I directed them to be sent to Mr. Abbott, one of the Counsel
for the prisoners, and I believe it was done. The prisoners were
at St. Johns or in that neighborhood when the said papers were
shewn tome. I do not know whether Mr. Abbott had been to St.
Johns previous to the time the papers were shewn to me or not.
Cross-eramination under reserve of objections.—I do not know
in whose handwriting the body of the papers M, N and O, are
filled up. ‘The only writing I recognize on the papers is the signa-
tures ; it is usual for clerks to fill up the commissions. I do not know
who had possession of those papers in Toronto, nor do I know who
sent them to Montreal. They were brought from Toronto to Mon-
treal by a person named Hiams ; I have only seen him once since he
brought the said papers. ‘These papers were shewn to me in the
presence of two persois, one named Moore, and the other named
McChesney. I do not know his Christian name ; he is now in Court,
and was residing in Montreal at that time. I did not send for the
papers. I was told by some person that they were sent for by Lieut.
Young; this was some days after the raid. I know all the prisoners
since the raid ; I knew one before, that is Lieut. Young ; I met him in
Canada on his way to the Confederate States last fall a year ago.
In the fall or winter of 1863, I met him in Montreal; I think he
stopped at the St. Lawrence Hall or the Donegana ; I met him once
or twice, I cannot say how long he remained in the city. I saw
him in Toronto once sometime last summer, I think in July or
August. I presumed he had returned from the Confederate States.
I am not certain that he went there. I met him at the Queen’s
Hotel Toronto ; this was the first time I met him in Upper Canada ;
I did not meet him there afterwards. I did not meet any of the
other prisoners. I did not see any of the prisoners immediately
before the raid at Montreal; and further saith not, &c.
W. H. CARROLL.
Montrose A. Pallen.—I am a native of Mississippi, I have been a
Surgeon in the Confederate army ; at that time was medical director
ofa Corps d’Armée. I knew two of the prisoners before I saw them
in Montreal,—_Mr. Swager, and Mr. Huntley, who answers to the
name of Hutchinson. I knew them in the Confederate army ; they
were soldiers in Mississippi. I know Mr. James A. Seddon, who
was Secretary of War last June. I know his hand-writing and
signature. Being shewn and having examined the papers marked
have
some
ewed
oO me
them,
unsel
were
were
(0 St.
»t.
know
), are
signa-
know
y who
Mon-
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n the
amed
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yr the
Lieut.
soners
nim in
ago.
nk he
once
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ly or
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een’s
hada ;
f the
ately
209
M, N and O, I declare that the signature James A. Seddon,
Secretary of War, is genuine. I have carefully examined the
said three documents, and the documents are genuine. I have
seen similar documents to papers N and O, which are called details.
I have frequently seen similar documents to paper M; it is the
regular commission, the same as mine, and I[ have always seen the
same kind in the Confederate States, except one, which was General
Frost’s. In that commission the pen was drawn through the words
respecting the sanction of the Senate. Being shewn and having
examined the paper writing marked P, [ believe the signiture
thereto to be the signature of C. C. Clay. Tam acquainted with
his hand-writing’and signature ; his first nameis Clement ; I believe
he was Senator for Alabama. I know that Mr. Clay was in this
country. I never saw his papers, but I know that he was a Com-
missioner of the Confederate States of America.
Cross-eramined under reserve.—My attention being particularly
called to the figures and dates, that is to the words October 6, 1864,
and beingasked if the paper on which these words are written presents
any appearance to induce me to believe that it was tampered with.
I answer that Iam not in the habit of handling papers that are
suspected of being forged. I do not know where Mr. Clay was on
the 6th October last.
Question.—-Whose hand- writing is the body of the paper writ-
ing P?
Answer.—So far as I am acquainted with Mr. Clay's letters
and figures, these look very much like his.
Question.— Will you swear that the word October, or so much of
it ag is written on said paper, also the figure 6, and the figures
1864, contained in the said pap-y are in the hand-writing of the
Hon. ©. ©. Clay, Jun.
—————_—--
PAPER P.
Mem. for J jjieut. Bennett Young, C. 8. A.
Your report of you .r doings, under your instructions of 16th June
last from the Secre* ary of War, covering the list of twenty Con-
federate soldiers ¥ /ho are escaped prisoners, collected and enrolled
by you under th’ yge instructions, is received.
Your sugge stions for a raid upon accessible towns in Vermont,
commencing ‘ith St. Albans, is approved, and you are authorised
and require’ to act in conformity with that suggestion.
October 6, 1864,
C. C. CLAY, JUN.,
Commissioner, C. 8. A.
210
Answer.—-I did not see him write it, and consequently cannot
swear that he wrote it. I did not see him write his name to the
said document. If I were a cashier in a bank in which Mr. Clay
had a deposit, and a check was presented to me with that signa-
ture, I would pay it. I think this is the first time I ever saw the
said paper. I have not seen Mr. Clay for two months. He was
here either in October or November last; and further saith not.
MONTROSE A. PALLEN.
William W. Cleary, being recalled, said :
During last summer, and for more than a year previous, Mr.
James A. Seddon was Secretary of War for the Confederate Gov-
ernment. I was employed in an official position at Richmond pre-
vious to coming here. I was an employé in the Treasury Depart-
ment, but the duties I performed were connected with the war
ofice. I have seen said Mr. Seddon’s signature over a thousand
times, and know it well. J have seen him write and sign his name
frequently. Being shewn and having examined the papers fyled
in this case marked M, N & O, from my knowledge of Mr.
Seddon’s signature, I have no doubt but that the signatures are
genuine. I have seen the commission, the paper M before now; to
the best of my recollection it was in the latter part of July last.
The prisoner Young then exhibited it to me. He stated to me that
he had other instructions in addition to the commission. This was
at Toronto. I do not know where he was going then. I am not
sure that Young told me he was going over to St. Catherines to see
Mr. Clay ; all this took place in the latter part of July last or the
beginning of August. I know Mr. Clay; his name is Clement C.
Clay, jun.; he was an officer of the Confederate Government, and
was appointed by the Government a commissioner abroad, and that
was his position in this country ; I am personally aware of this fact.
The last I heard from Mr. Clay was that he was en route for the
‘Confederacy. I have since heard of him, from Halifax. I think it
was in December last, that he left Canada. I know his handwrit-
ing and signature very well. Being shewn and having examined
the paper writing marked P, I believe that the whole of it, the body
and signature both, are in the handwriting of said Clement C. Clay.
I have no doubt of it at all. His handwriting is peculiar and very
characteristic, and I could not very well mistake it. I saw that paper
for the first time about a month ago. I was previously aware that Mr.
Clay had sanctioned the St. Albans raid. I became aware a short
time after the raid occurred that he had authorized it. I know this
from himself. It was in consequence of my knowledge that he had
authorized the raid that I asked to see paper P. The information
211
T got from Mr. Clay, was that the authority he had given was in
writing. He said the paper was in Montreal, and to the best of
my knowledge he said it was in the possession of Mr. Abbott. I
was aware before the raid that Mr. Young had projected some
expedition ; but of this raid I knew nothing ; I knew that he was in
communication with Mr. Clay about some expedition. After the
raid I understood from Mr. Clay himself that he had advanced
from the Confederate funds sums of money for the defence of the
prisoners. I understood from Mr. Clay that the parties not arrested
had turned over to him, as Confederate Commissioner, the money
captured at St. Albans. I do not know anything about the money
that was before the Court. I have seen a great many commissions
like paper M ; that paper is in the usual form of commissions, when
the Senate is not in Session. It is not usual to append any seal
to documents of that sort. The Senate was not in session at the
time that paper was issued, but is now in session. I believe, accord-
ing to the Constitution and laws of the Confederate States, that the
Secretary of War is the proper person to execute and issue such a
commission and such orders as papers M, Nand O. Lieut. Young
would have been liable to be tried by court martial if he had disobeyed
the directions contained in those papers.
Cross-eramined, under reserve of objections :
I believe Mr. Clay came here in the month of June last as Com-
missioner. I donot know where he stopped in Montreal. He was in
Upper Canada; his principal place of residence was at St. Cathe-
rines. I saw him frequently at the Clifton House, also at St. Cath-
erines. In October last he was residing at St. Catherines. I saw
him there in the months of August and September last. He
remained in Canada from June to December, and I understood his
place of residence was St. Catherines. I do not want it to be said
that I said he remained in Canada all the time. I think he left
(Quebec in the middle of December. I have been informed he left
Halifax in the month of January last. I have known the prisoner
Bennett H. Young since last July, when I made his acquaintance
at Toronto, in Upper Canada. I met him afterwards in Toronto,
in the months of August and September. I met him at the Queen’s
Hotel, where I met him in September, about the first week thereof ;
he was on his road to St. Catherines, to visit, as I suppose, the
Honorable Mr. Clay. I did not see him afterwards. In August
last, I met the prisoner Hutchinson, or Huntley, at the Queen’s
Hotel. I do not know that he went by any other name than that
of Huntley. Mr. Young was there at the same time. I saw them
in company together. I do not recollect meeting any other of the
prisoners. I recollect also having been introduced to Captain Col-
lins, who was one of the persons arrested for the St. Albans raid,
naps: >
ba
——
rind
a ee Ee
Se a Ce
and who was discharged by Mr. Coursol. I met him in August
last in Toronto. I have seen some of the other persons who were
prisoners, and discharged by Mr. Conrsol, in Upper Canada in the
month of August last. The said Mr. Clay was both a civil and
a military officer. He made his reports to the State Department,
which was the civil department of the State, but he had ample
powers, both civil and military; but he had no rank in the army.
He was not a commissioned officer in the army.
(Signed), WM. W. CLEARY.
James Watson Wallace, of Virginia, on his oath saith:—I ama
native of Virginia, one of the Confederate States. I resided in
Jefferson in the said State. I left that State in October. I know
James A. Seddon was Secretary of War last year. Being shown
and having examined the papers M, N and O,I say that from
my knowledge of his handwriting, the sionatures to said papers are
the genuine signatures of the said James A. Seddon. I have seen
him upon several occasions write and sign his name. He has
signed documents and afterwards handed them to me in my pre-
sence. I never was in the Confederate army. I was commissioned
as major to raise a battalion. I have seen a number of the com-
missions issued by the Confederate Government, and the commission
of Lieutenant Young marked “ M”’ is in the usual form of all
commissions issued in the army, which are always signed by the
Secretary of War. I never served; I was incapacitated by an
accident, and being then kidnapped by the Northerners.
I was in Richmond in September last. I then visited the War
Department. It was then notorious that the war was to be carried
into New England in the same way that the Northerners had done
in Virginia. When I was in Virginia I lived in my own house
until Iwas burned out, and my ‘family were turned out by the
Northern soldiers.
The Counsel for the United States object to the whole of this
evidence as illegal, irrelevant and foreign to the issue, and con-
sequently decline to cross-examine.
(Signed) J. WATSON WALLACE.
George N. Sanders.—Being shown and having examined the
paper writings marked M, N and O, I believe I have seen
similar papers before or of a similar purport, and which I believe
to be the same substance as these, the day of the St. Albans raid.
I merely looked at the papers at that time to see their general pur-
port, and to have them delivered to the Counsel for the defence of
the prisoners. .I directed them to be remitted to the prisoner’s
Counsel ; they came from Toronto, I believe, on the application of
‘ust
ere
the
and
ont,
ple
my.
ma
L in
now
own
rom
are
seen
has
pre-
med
om-
sion
f all
the
an
Nar
‘ied
one
use
the
this
on-
Young after his arrest. I know Mr. C. C. Clay, whose name is
subscribed to document P. ILe was then exercising the authority
of a Confederate agent, claiming full ambassadorial powers, as well
civil as military. T had several conversations with Mr. Clay about
the St. Albans raid. He informed me that he directed the raid,
and gave the order for it—the St. Albans raid—and Bennett HI.
Young was instructed by him tc carry it out. Mr. Clay told me
about the eighth day of December last, a few days befure he left,
that he would leave such a letter as the paper writing marked P,
and which I infer had not been written up to that time. ‘The letter
which he said he would write on that occasion was a Jetter assum-
ing all the responsibility of the St. Albans raid, for which he was
responsible. Upon being asked to look at the paper writing marked P
again, and the date especially, I say the conversation I had with
Mr. Clay had no reference to this paper. Myr. Clay was to leave
a declaration in the shape of a letter, assuming all the responsibility
of the said raid... Mr. Clay was not here on the 13th of December
last. He must have left here carly in December last, some few
days before Mr. Coursol discharged the prisoners. Mr. Clay in-
structed me to employ Counsel to defend the prisoners on hehalf of
the Confederate Government ; he left a sum of money to my credit
for that purpose. I employ ed Counsel accordingly. My mission
was one of peace. I knew nothing of the St. Albans raid or any
other raid. The first information Thad of it was after it occurred.
Last August I met said Mr. Clay and Young in St. Catherines,
Upper Canada ; I believe about the time of the Chicago Conven-
tion. I am aware that the St. Albans raid has been ordered and
approved by the Confederate authorities.
The Counsel for the United States object to the whole of this
evidence, and decline to cross-examine.
(Signed) GEO. N. SANDERS.
February 15th, 1865.
Stephen F. Cameron.—l am a citizen of Maryland. i have
been in the Confederate service, as chaplain, from the beginning
of the war to the present time. I was in Richmond on the 1st
February instant.
(The Counsel for the defence produced muster-roll of Company
A, 8th Kentucky Cavalry, containing the name of Marcus Spurr ;
copy of muster-roll of Lagrange Light Guard of Georgia, con-
taining the name of William Hutchinson Huntley ; copy of muster-
roll of Company B, Colonel Chenault’s Kentucky Cavalry, con-
taining the name of Squire Teavis ; copy of muster-roll of Company
H, Second Kentucky Infantry, contaiming the name of Charles
214
M. Swager ; also copies of two letters of instructions addressed
to Lieut. Bennett H. Young, dated June 16th, 1864, and purporting
to be signed by James A. Seddon, Secretary of War; the whole
purporting to be certified under the hand of J. P. Benjamin,
Secretary of State of the Confederate States of America, and
under the great seal of the Confederate States of America. The
whole marked Z; (to the production of which documents, and of any
proof in support thereof, the Counsel of the United States object,
as being irrelevant, irregular, and illegal. Objection reserved by
the Judge. )
Being shown and having examined the said papers,—I say that
I received them from Secretary Benjamin, Secretary of State
of the Confederate States. He affixed his signature to them in my
presence. I did not part with them until I handed them to the
Honorable Mr. Abbott yesterday. The seal was affixed at that
time,—that is, the great seal of the Confederate States was
affixed to them when he signed them; and he called my atten-
tion to the seal. ‘This was in the office of the Secretary of
State. I volunteered to go for the papers for the prisoners.
I carried a missive from Colonel Thompson, who arranged with
me about going, and supplied the funds. I called upon Mr. Ben-
jamin about an hour after my arrival in Richmond, and he informed
me that the papers had been sent by another messenger on the day
before. He said that the papers had been sent, that every thing
had been sent, necessary to establish their belligerent character
and that they acted under orders. The following day I called
on the President, by appointment, and asked, that to insure the
safe delivery of the papers, I might be entrusted with a duplicate
as a second messenger. He readily acquiesced, and expressed
great anxiety that they should be so placed as to escape detection,
suggesting that the paper containing the great seal should be photo-
graphed upon tissue paper, so as to take up less space. Mr. Ben-
jamin being present, explained that the muster-roll would take so
much space, that the size of the great seal would be of no conse-
quence. He stated that he had sent the orders under which the
young men had acted, previous to their making the raid. He
thought that these papers would be fully sufficient to justify their
doings, and that they would have full justice done them he nad no
doubt. ‘The President stated that the prisoners’ orders under
which they acted having been sent, constituted superior testimony
to any subsequent ratification. He expressed some surprise °. to
the result of Burley’s case. I explained to him that in thav case
the Judge was only a Police Magistrate, accustomed to deal only
with petty larcenies, but that in this case it was before a Superior
Court Judge who would appreciate questions of International
215
law. He stated as his reason for not issuing his order in this case,
that his general order in the Burley case had been disregarded,
and he seemed piqued and indignant at that fact. I told him that
if the Confederate States had been as near neighbors as the Federal
States, there would have been, probably, a different result. I looked
at the papers in the Department of State, to see that the names
were affixed ; they are precisely in the same condition now as when
I received them : I made no request for any particular papers: I
merely presented the message with which I was entrusted ; I never
read the letter with which I was entrusted, and do not ‘know its
contents, except that I understood that it was a letter of introduction,
and contained the names of the prisoners.
The Counsel for the United States, objecting to the whole of this
evidence as illegal and incumbent, decline to cross-examine this
witness.
(Signed) S. F. CAMERON,
George S. Conger, of the town of St. Albans.—On the 10th
October last, I was in St. Albans, aforesaid ; I remember the raid
on that day. The first thing I saw was putting some fellows on
the green. ‘They were put on the green by force, with revolvers
at their heads. ‘There was a cuard set over them. I saw them
taking horses off some double team. I then saw some ten or twelve
of them coming out of the American House yard on horse-back.
The town’s people were running, some one way and some another,
seared seemingly. I heard the discharge of fire-arms. I discharged
fire-arms myself on that day. I fired ‘at the raiders. Twas amned
with the breech-loading carbine. At the lower part of the town,
just above one of the banks, I was firmg at these partics. [I
followed them down the street, firing at them, about a quarter of a
mile, and kept firing at them all the way. I believe some others
of the town’s s people were firing at them. I saw two or three of
the town’s people fire at them. I could fire five or six shots a
minute with my carbine. I thought those men were Confederate
raiders. I thought so heeause they commenced firing at the people
there ; they fired at me several times. And when the people called
to arms, they said these were Confederate raiders. It was not a
running fight until they got out of town. I saw no one firing
at them after they got out of town. I saw one house on fire after
they passed, it was a store; this was a couple of minutes after
they passed it. I did not hear any of the raiders declare what
they were. I am nineteen years of age.
Counsel for the United” States decline to crossexamine the
witness.
(Signed) G. 8S. CONGER.
goa F
216
William M. Cleary is re-called asa witness :—I recognize the
seal appended to the certificate signed J. P. Benjamin, Secretary
of State, as being the great seal of the Confederate States of
America. Ido not remember having seen the seal of the War
Office before. I have in my possession the original of the paper
first annexed to the said certificate, being instructions to Lieut.
Young to report to Messrs. Thompson and Clay, which I now pro-
duce, and which is identified by the letter R. The reason why I
did not produce this paper or the other papers, N and O, at an
earlier stage of the trial, that is, when delay was first asked to send
to Richmond, was that after a consitltation: IT had with the Counsel
for the defence, it was decided not to produce them until an oppor-
tunity had been afforded for getting papers from Richmond, because
it was feared that the production of those papers might involve Mr.
Clay in a charge of a breach of the laws of neutr ality. T cannot
state that it is the general rule of the War Office to issue more than
one letter of instruction to the same persons at the same time. I
have known of its being done, but it is rather the exception. It
has been done in cases when the duty was to be performed outside
of the Confederate lines, from whence there might be difficulty i in
communicating with the Government in the event of any unforeseen
occurrence, so that the intent of the sending of the par ty might not
be defeated; and the object is to enable the party sent to obtain his
orders in different ways. I know of a fact which would account for
PAPER R. CONFEDERATE STATES OF AMERICA,
War Department.
Richmond, Va., June 16th, 1864.
To Lreur. Bennerr H. Youne,
Lrxut.---You have been appointed temporarily 1st Lieut. in the
Provisional Army for special service.
You will proceed without delay to the British Provinces, where
you will report to Messrs. Thompson and Clay for instructions.
You will, under their direction, collect together such Confederate
soldiers who have escaped from the enemy, “not exceeding twenty in
number, as you may deem suitable for the purpose, and w vill execute
such enterprises as may be entrusted to you. You will take care
to commit no violation of the local law, and to obey implicitly their
instructions. You and your men will receive from these gentle-
men, transpor tation, and the customary rations and clothing , or
commutation ther efor.
JAMES A. SEDDON,
Sec. of War.
Va., June 16th.
the
rte
ite
re
217
Bennett H. Young being referred to Mr. Clay a3 well as to Messrs.
Thompson and ( lay, namely, because he was a particular favorite
of Mr. Clay, and was appointed to a commission on bh’ ~ecommen-
dation. I know that he was appointed for service within the
enemy's lines, that is within the Northern States. I know that
Mr. Clay recommended him for that commission for this purpose.
Question.—Are you or are you not aware that Lieut. Young
proceeded to Richmond in May last with the recommendation of
the Hon. Mr. Clay for his appointment to a commission in the Con-
federate army, for the purpose of undertaking raids against towns
on the Northern frontier.
Objected to. Objection maintained.
Counsel for the defence declines to cross-examine the witness.
(Signed ) WM. W. CLEARY.
Lewis Sanders.—I know Lieut. Bennett IT. Young, one of the
prisoners ; I know the Hon. Clement C. Clay, Jun. ; I was present at
several conversations between said Mr. Clay aud said Lieut. Ben-
nett H. Young, between the 29th of August and the 9th of Septem-
ber last. I heard conversations between them about the attack on
st. Albans, which was subsequently made on the 19th of October.
The purport of these conversations was that Young was to burn
the town if possible, and sack the banks. I am aware that Mr.
Clay furnished Young with money to cover his expenses at the said
rad. Mr. Clay sent me a cheque for $400 or upwards for Mr.
Young, towards the expenses of the said expedition. I gave him
the said cheque, and he got the money on it in Montreal; this was
about two weeks before the raid. 1 had no personal knowledge that
he got the money, but I presume he did, as there were funds there
to meet it.
Cross-eranined wider reserve of objection.
The conversations above referred to between Bennett H. Young
and Mr. Clay all took place in Mr. Clay’s private residence, in the
town of St. Catherines, in Upper Canada. This cheque that I
referred to was drawn on the Ontario bank. I believe it came to
me ina letter, and my impression is that it came from Quebec. It
is my impression that the cheque was drawn on the Ontario bank
here. I was not present when it was presented. I think that
cheque was signed by Mr. Clay. It was signed simply **C. C. Clay,
Jr.,”” and the cheque was payable to the order of Bennett H. Young.
I believe I saw the said Bennett H. Young in Montreal, about
three days before the raid, which took pace on the 19th of
October last. I also saw the said Marcus Spurr in Montreal
about four days before the said raid. -1 did not sce any of the
other said prisoners at any time near the period of the raid; and
is
ry
°
i
218
the nearest time to that date that I saw any of them was in July
last; I then saw the said Charles M. Swager at Windsor in
Canada West. I[ did not know any of the other prisoners now
here before the said raid. I recollect meeting a brother of Mr.
Teavis at Clifton House, before the raid in July last.
(Signed) LEWIS SANDERS.
John B. F. Davidge.—I was admitted to practice at Washing-
ton City, in the District of Columbia. ‘The crime of treason is
defined in the 8rd Article and 38rd Section of the Constitution of
the United States of America, which will be found in the volume
of the Statutes of the State of Vermont fyled in this cause.
Question.—If a body of men attack a town situated in the State
of Vermont, the said body of men being composed of citizens of
the United States, declare that they take possession of that town
in the name of an enemy of the said United States, plunder banks
and citizens, fire upon the citizens, and retreat in military order from
the town, in your opinion do these acts constitute a treason agamst
the United States ?
Answer.—lI should say so.
Counsel for the United States decline to cross-examine.
J. B. F. DAVIDGE.
Hon. Mr. Abbott here declared the case for the defence to be
closed.
Mr. Bethune in rebuttal called :—
John Chas. Dent.—I know Bennett H. Young aud Marcus
Spurr, two of the prisoners now in Court ; | first became acquainted
with them in the fall of 1863, then in Toronto; they were both
residing there at that time. ‘The said Bennett H. Young and 1
were living in the same boarding-house. The said Bennett H.
Young was then at college at the University of Toronto. I cannot
swear that he remained in Toronto more than three months after I
became acquainted with him. 1 knew him for three months.
I saw the said Bennett IH. Young either late in the spring or in
the beginning of the summer of last year. I saw very little of Mr.
Spurr ; my impression is that he remained in Toronto as long as the
said Bennett I. Young.
Cross-examined.—-I believe they had escaped from the Northern
States. They had, I understood, been prisoners of war.
JOHN CHAS. DENT.
William L. Wilkinson.--I know Bennett H. Young, one of the
prisoners now in Court, and I first became acquainted with him in
PAE eI aa Sa
July
r in
now
Mr.
Ss.
hin-
on 1s
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Jume
State
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yonks
from
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to be
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Anno.
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Mr.
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the
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219
the fall of 1863. We boarded together about three months
Toronto. The said Young was at that time studying in the
University at Toronto. He remained in Toronto until early in the
spring, when he told me that he was going to the city of Richmond,
About two months after that I saw him again in Toronto. I only
saw him for a short time after that, for about a week or two.
The Counsel for the defence decline to cross-examine.
(Signed ) WILLIAM L. WILKINSON.
illiam Donohue.—I ama Sergeant in the Water Police. I
Will Donol I ama Sergeant in the W
know one of the prisoners, viz: Squire Turner Teavis. I made
ig acquaintance in the hotel, St. John: anada East, a few days
his acquainta n the hotel, St. Johns, Canada East,
before the raid. I had no conversation with him. I saw no other
of the prisoners there before the raid.
Counsel for the defence decline to cross-examine the witness.
WILLIAM DONOHUE.
Erastus Wyman.—I know the prisoner Bennett H. Young; I
became acquainted with him during the fall of 1863. I under-
stood him then to be resident in Toronto, and attending the Univer-
sity there. I cannot positively say so, but to the best of my recol-
lection he continued to reside there for six months after I became
acquainted with him. I saw him late in 1863. I do not remem-
ber seeing him there in 1864. I left Toronto in February, 1864,
and came to reside here. I met him onor about the 15th October
last, on the train coming from Toronto here ; that is the last that I
saw of him until after his arrest.
The Counsel for the defence decline to cross-examine.
EK. WYMAN.
Nelson Mott.—I recognize two of the prisoners, Bennett H.
Young and Wiliam H. Hutchinson. These two persons arrived in
company with four others on the evening, I think of the eleventh of
October last, and put up at Leonard Hogle’s hotel, in St. Johns,
C.E. ‘These persons remained for some days at the hotel, leaving
separately at different times. ‘The person who now answers to
the name of Hutchinson, and who registered his name as Jones,
left about five o’clock, and as I understood, by the train going to
Rouse’s Point; this was on the 18th of October last. I do not know
the precise day on which the said Young left. ‘They all left scat-
teringly. I had conversation with the one calling himself Jones,
at the hotel, who answers to the name of Hutchinson; while so
living at the said hotel, he was receiving newspapers from St. Albans,
er
Samet
Sa
ee eee
a Realms ame
220
Vermont. In the course of conversation he enquired the relative
distances of Frelighsburgh and Philipsburgh from St. Albans.
The Counsel for the defence decline to cross-examine
NELSON MOTT.
Henry Allan. I recognize Marcus Spurr, one of the prisoners ;
I made his acquaintance in Toronto last winter, in the latter part
of January, 1864. He had no business that I know of; he was
there for two or three months after that. I saw him here in
Montreal, last October, before the raid at St. Albans; he was
i
staying at the St. Lawrence Hall. I saw him in Montreal two or
taying at the St. Lawrence Hall. I saw | Montreal t |
three days before the raid at St. Albans. }
The Counsel for the defence decline to cross-examine. ;
HENRY ALLAN
James L. Hogle-—\ formerly resided at St. Johns, Canada 4
East ; I kept an hotel there in the month of October last. 1 recounize
v4 two of the prisoners now in Court, viz: Bennett Il. Young and
tt William H. Wutchinson. They put up at my hotel at St. Johns.
ie They arrived with four others, and all put up at my hotel. They
4 arrived on the 11th day of October last, and registered their names
in the register which I there kept, and which T now have in Court.
The prisoner Hutchinson registered his name as Jones, I think J.
A. Jones. They arrived in a body, and three of ther left on the
ees Saturday of the same week, as I left home. I cannot say when the
| other three left. Upon looking at the register, the entry so made
Th? by the said Hutchinson is W. P. Jones, Troy, N. Y. a.
it The Counsel for the defence decline to cross-examine.
ft
J. L. TOGLE.
Thursday, Feb. 16, 1865.
ee Mr. Bethune said the prosecution expected more witnesses, but
TEL these not being present, he argued that the prosecution had fully
| proved a case of robbery against Spurr and Teavis on the person
i of one Breck ; and that he apprehended all the prisoners were
big} equally guilty, as all started with the purpose of plundering the
banks. ‘The evidence showed all were in town on that day, as
ah proved by Bettesworth, and after the robbery left the town and
ee fled together into Canada. He then proceeded to quote Hawkin’s
Puig Pleas of the Crown, chap. 84, sec. 4, p. 148; Hale, vol. 1, p.
rE 584 ; 1st Bishop, sec. 267 ; also 2nd Bishop, for ‘robbery, quoting
qi 2 Hawkins. He contended that the prisoners had all arrived at
St. Albans with the intention of plunder. They all came there for
the purpose of plundering the banks; and as an incident to the
ada
aneAY
and
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hey
umes
ourt.
ik J.
the
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ully
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, 28
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i
plunder of one of them, they had also plundered the co:nplainant ;
and they all left there together. As they had assembled there
with intent to commit one felony, they were all alike guilty, if any
of the party, so assembled, had committed another in the course of
the prosecution of the one which they intended to commit. He
cited, as an illustration of the doctrine, an instance in which parties
were prosecuted for a breach of the peace with intent to resist the
police, in which the Court held all equally guilty of the murder of
a person accidentally killed, though some of the party were distant
and even out of view. With these authorities, he submitted the
prosecution were entitled to a warrant of commitment for extra-
dition against the prisoners. They (the prosecution) intended to
await the arvuments of their learned friends on Monday ; and if, in
reply, the prosecution quoted any authorities, it would be the
privilege of the defence to answer them. It would also be the
privilege of the Crown prosecutor to sum up the whole case after:
wards,
Hon. Mr. Abbott said it was to be regretted that the prosecution
had not told them the grounds they intended to take.
Mr. Bethune said that the ground would be that the prisoners
had committed robbery.
Hon. Mr. Abbott continued that the disadvantage would )., that
they would have to argue and fortify every point of law and of fact,
not knowing what was “disputed or what denied by the prosecution.
This would “greatly lengthen the arguments for the defence which
might otherwise have been confined to the real points in issue.
The case of the prosecution would only be developed in their reply,
and this again would be unjust to the prisoners.
His Honor said that if necessary he would hear the counsel for
the defence again.
Mr. Bethune did not care how often they spoke. The ease to
be maintained was one of robbery.
Mr. Johnson said there was no particular form of procedure in
such cases.
Hon. Mr. Abbott said that Mr. Bethune had proposed that’ Mr.
Johnson should sum up, but he denied that the Crown prosecutor
had any such right. The real prosecutor was the United States,
and after they were heard, the case ought to be left to his Honor.
Mr. Johnson said that with respect to the office of Crown prose-
cutor, that might be safely left to him.
His Honor thought that the Crown offcer was entitled to reply.
The case was a Crown case, in so far as it was the duty of the
Crown officer to rectify anything wrong; but that whatever Mr.
Abbott had to say he would hear him.
The enquiry was then adjvuined till Monday at 10.30.
222
Mr. Kerr for the defence, handed to the Judge and counsel a
printed paper containing the following propositions and authorities :
1. That Bennett H. Young was on the nineteenth of October
last, a commissioned officer in the service of the Confederate
States in command of a party of enrolled Confederate States troops,
then in the territory of the United States; a country with which
the Confederate States were at war, qguoad which contest Her
Majesty had declared her determination to maintain a strict and
impartial neutrality between the contending parties.
2. That the said Bennett IH. Young was ordered and
directed by his Superior Officer, to whom he had been referred for
Instructions by the Government of the Confederate States, to
make the raid upon St. Albans, now under investigation.—The
Hon. C. C. Clay’s letter 6 Oct., 1864.
5. That the tenth article of the Ashburton Treaty is strictly
limited in its operation to the crimes recognized by the common law
of both countries under the names thereto applied in the
treaty. And that the whole of the facts and circumstances of the
case must be examined into and weighed by the judge, in order
that he may be satisfied that the act of the accused can be justly
designated as one of the crimes mentioned in the treaty.—Robbins
alias Nash’s case. Wharton. Expte Bollman & Swartout
Marshall on the Cunstitution, pp. 83 to 41. The People v.
Martin & al., 7. N. Y. L. Observer pp. 52 to 56. 4 Op. Attys.
Gen., p. 202.
4. That acts of hostility committed by the troops of the Confede-
rate States, a recognized belligerent within the territory of the
Federal States, the other belligerent, and political offences arising
out of popular commotions, insurrections, or civil war do not come
within the provisions of the treaty.—Presdt. Tyler’s message.
Wheaton, Lawrence’s edition, pp. 236, 24 in notis.
©. That the United States no longer exist. That since the rati-
fication of the treaty of 1842, five or six States have been admitted
into, and nine or ten States have seceded from the Union—that
between two portions of the former republic, civil war has been
and is now raging—and that thereby the sovereignty, which
subsisted only in the Union, was immediately upon the commence-
ment of the war dissolved.—2 Burlamaqui, pt. 4, cap. 7, §38, p. 210.
6. That the war now raging between the Federal States and the
Confederate States is what is called a perfect war. That both
parties are belligerents, and entitled to all belligerent rights given
by war to sovereign governments.— Wheaton, 40, 523, 524, 520
m notis, 1, 2, 847, 850 in notis. The Tropic Wind, Monthly L.
Reporter 1861, p. 1651.
7. That during a war between two nations or governments, the
ee
,
‘i
a
t
q
223
municipal criminal codes of the belligerents are silent and imopera-
tive quoad acts committed by the troops of either of the belligerents
within the territories of the other. The law of nationsalone furnishing
the rules for the government of armies or detached bodies of troo
on hostile territory.—3 Burlamaqui, pt. 4, cap. 5, § 8, 12, 13, 14,
15,16. 2 Azun, pp. 64,18. 2 Rutherforth, B. 2, cap. 9, § 15,
p. o40, 546, AY dol.
8. That under the law of nations, in what is called a perfect war,
the rule is that the person of the enemy is liable to seizure, and
his property to confiscation, scizure, or capture, wherever found.—
8 Phillimore pp. 115, 116, 120, in notis (132, 8 & 9 note q.)
Lawrence’s Wheaton, pp. 518, 519,596. Lee on Captures, p.
i41. Bynkershock, chap. 4, p. 27. 8 Rutherforth, p. 549,
Bas v. Tingy, 4 Wheaton Rep. p. 40. Miller v. The Resolu-
tion, 2 Dallas, R. 21.
That, under the law of nations, members of one belligerent
nation may lawfully kill members of the other belligerent nation, or
seize or capture their property wherever found, except in neutral
territory. Lawrence’s Wheaton, p. 518. 2 Rutherforth § 18, p.
578, § 19, p. 694. 3 Phillimore, p. 187. Burlamaqui, p. 199,
201. Jecker v. Montgomery, 18 Howard, 114.
10. That the commission of an officer in the army of a bellige-
rent power, authorizes him and the men under his command to
engage in every act of hostility against the other belligerent, per-
missible under the law of nations.—1 Kent’s Com., pp. 94 & 96.
Halleck, p. 886. Lawrence’s Wheaton, pp. 626, 627. Lieber’s
Instructions, No. 57. 1 Opin. of Attys. Gen. pp. 46, 81. 26
Wendell, p. 675. 2 Rutherforth, pp. 570, 580.
11. That if such commissioned officer violates instructions,
limiting him and his command to certain acts of hostility, and
exceeds the bounds therein prescribed for him, he is guilty of an
offence against his own government, whose rules for his guidance he
has infringed ; but he cannot be revarded as a criminal by the other
belligerent, or by neutral nations ; ; for he is innocent of any offence
against international law.—3 Phillimore p p- 1537. Bynkershoek, p.
134, 2 Rutherforth, pp. 596, 597, 598, 599. Wheaton, pp. 247,
248, 249,
12. That the only government having power to enquire whether
such commissioned officer has exceeded his instructions, or violated
the rules laid down for his guidance in his conduct towards the
enemy, is the government which commissioned him.—Bynkershoek,
p. 134. 2 Rutherforth, pp. 595, 6, 7, 8 & 9. Wheaton,
247, 8 & 9. 1 Opinions of Attys. Gen., pp. 46, 81. Westlake’s
Priy. Int. Law, p. 120. 26 Wendell, p. 675.
3. That a violation of neutral rights, either by capture in neu-
3 ————————
———
ota Boney
TSS
EE.
he
Tae 4
fa
224
tral territory of enemy's property, or by the use of neutral territory
for the passage of troops or as the starting point of an expedition
against the enemy's country, does not deprive the troops so violating
neutrality of their belligerent character. The belligerent whose
property has been captured has no rights in the matter, and quoad
him, captures so effected are legal. Such violation of neutrality
cannot affect in any way the non-responsibility of belligerent
troops to the ordinary tribunals, for hostile acts.—LThistoricus, p.
52, 158, 154, 155, 158, 159, 162. 1 Kent. p. 119. Grotius lib.
{II., cap. 4, §8. Bynkershoek b. 1. cap. 8. 2. Ortolan, p. 250,
The Anne, 3 Wheat. Rep. 480 per Story C.J. The Etruseo, 3.
Rob. 162. Brig Alerta vs. Blas Mornet. 3. Peters Rep. 425,
La Amistad de Rues, 5 Wheat. Rep. 389, per Story. Wheaton,
p. 722. Judge Tallmadge on McLeod case, 26 Wendell, pp. 665
to 699.
14. That a neutral government cannot take cognizance of, or
pronounce a judgment upon, any act of hostility committed by
troops under the command of an officer commissioned by one belli-
gerent, within the territory of the other belligerent.—Lawrence’s
Wheaton, pp. 40, 42 én notis. Bynkershoek, pp. 115, 116, in
notis 119, in notix, Notis. 26 Wendell, p. 688 & 9. Vattel, 3,
lib. 7, cap. § 103, 110, Halleck, p. 73. 3 Phillimore, 201,
202, 2 Burlamaqui, pp. 193, 208. Lee on Captures, pp. 109,
138. °2 Rutherforth, 550, 551, 552, 5538. 2 Azuni, p. 64.
15. That if a neutral nation, on the demand of one bel-
ligerent, delivers up to that belligerent soldiers and_ officers
of the other belligerent, who have committed acts of hostility in the
country of the belligerent demanding such extradition, on the
ground that such acts were crimes, such pretended neutral nation
thereby violates its neutrality and espouses the side of the bellige-
rent to whom extradition is made.—2 Burlamaqui, p. 193. 2
Rutherforth, pp. 552, 553. Halleck, p. 629. Bynkershoek, pp
69, 118 in notis.
16. That as a civil war existed between the Federal States and
the Confederates States on the 19th October last; Her Majesty
had proclaimed Her neutrality in the war; and Bennett H.
Young was then a commissioned officer in command of a detach-
ment of Confederate troops, operating under orders from his Govern-
ment within the territory of the Federal States, the act of Bennett H,
Young and his command cannot be measured by the provisions of
the municipal criminal code of the enemies of his country ; nor can
our Courts or officials hold his acts to be crimes within the purvieu
of the Ashburton treaty.—U. 8S. v. Palmer. 4 Wheaton, p. 52.
17. That the assemblage of Citizens of the United States, for
the purpose, on behalf of the Confederate States, of sacking and
r- Rr = x we. ma ..l.lti;
teed
225
burning the town of St. Albans is an overt act of treason against
the United States—I parte Bollman ect al. Marshall on the
Constitution, p. 42, 44. U. 8. v. Burr. do. pp. 61, 62, 63, 65,
66, 69, 70, 73, 81, 82.
Mr. Kerr said :-—To me has been confided by my learned friends
the duty of opening the case for the prisoners. Itis, f can assure your
Honor, with fear and trembling that I take upon myself the responsi-
bility necessarily attaching itself to my position. Not that I believe
that our cause is weak, not that [am afraid that our just claims will be
ignored ; but the great importance of the principles involved, the
magnitude of the interests at stake, and the almost boundless field
for research and argument which spreads itself before the counsel
employed,—all tend more thoroughly to bring before cach of us his
own utter incapacity to render their meed of justice to the rights
of our clients. ‘That this is one of the most important cases ever
presented for the consideration of any of our Courts, will not be
denied ;—that it has already produced a ereater effect upon the
passions and prejudices of men both in Canada and the former
United States, than any other cause cZ/?bre in this Province, will
readily be admitted. It has been the moving cause of a eall to
arms within the Colony. It may justly be looked upon as the
origin of those fears which culminated in the denial of asylum to
political refugees by our Provincial Parliament. From it the eare-
ful observer can trace the origin of the pressure brought to bear
upon our Judges, to induce them to degrade the palladium of the
law into the mmister of the temporary passions of the Government,
and the servile instrument of the interests of the United States.
The very papers produced by the prisoners were bought by the
price of blood, for onc of the messengers despatched to Richmond
to obtain information for your Honor, but the day before yesterday
explated the crimes of being a loyal soldier, a true friend, and a
gallant patriot, on the gallows at Johnson’s Island. Your Honor
can read in the treatment of the messenger, the certain tate of
those who sent him on his errand. Cursed be the hand which
spareth, is the motto of the United States. Can it be wondered at
then that the knowledge of our responsibility in the grave task we
have undertaken should weigh so heavily upon us; that it should
like a pall hang over us whithersoever we may go. But all that we ask
—all that we pray for—is, that it may not so deaden our energies
as to render us incapable of laying before you fairly, manfully and
faithfully, all the points in this most interesting case, with the prin-
ciples of law which define the positions of the prosecutors, the pri-
soners and the judge.
The question of extradition of criminals by the authorities
of the country within the limits of which they had sought
Pp
226
refuge, to the authorities of the country within whose terri-
tories they had committed a crime, was one which formerly occu-
pied the attention of statesmen and publicists throughout the civi-
lized world. Like every other important principle of what may
be called international expediency, the existence of the right to
demand was by some authors denied, by others admitted. The
question however was shrouded in obscurity, and the greater num-
ber of the nations of the world have pronounced against the exis-
tence of any such right, by entering into treaties by which they
agreed under certain conditions, to deliver up persons to the autho-
rities of the other parties to the treaty, accused of having com-
mitted crimes within their jurisdiction. It is unnecessary here to
enter into a detail of the treaties entered into between different
States wherein an extradition stipulation appeared ; it is sufficient
to say that Great Britain has, at different periods, entered into two
on that subject with the United States. The provisions of the
first made, in 1794, and known in American works as the Jay
Treaty, was in its extradition clause almost precisely similar to
the tenth clause of the Ashburton ‘Treaty; in fact no difference
of any moment was apparent, save the promise to vest jurisdic-
tion in the judges and magistrates. It was limited in its opera-
tion to twelve years, and expired without any great use having
been made of its provisions. ‘The only cause célébre arising
under it was that of Nash alias Robbins, to which reference
will be made hereafter. In 1842, the Ashburton Treaty was
entered into between Great Britain and the United States,
by the tenth clause of which it was stipulated and agreed, that
on demand the high contracting parties should deliver up to
justice, all persons who being charged with the crime of mur-
der, or assault with intent to commit murder, or piracy, or arson,
or robbery, &c., &c., should seek an asylum, or be found within
the territories of the other, provided that this should only be done
upon such evidence of ‘criminality, as according to the laws of the
place where the fugitive or person so charged should be found,
would justify his apprehension and committal for trial, if the crime
or offence had been there committed ; and it was further provided,
that the evidence of criminality should be heard and considered by
the judge or magistrate issuing the warrant, and that if on such
hearing, the evidence should be deemed sufficient to sustain the
charge, then the justice was so to certify to the proper executive
authority, in order that a warrant of extradition might issue.
It has been ruled in this case that the proceedings were rightly
instituted under the Provincial Act 24 Vic.,cap. 6; it becomes then
my duty to enquire what are the powers of the officials mentioned
in that Act, with reference to the examination of the sufficiency of
‘ising
ence
was
ates,
, that
up to
mur-
hrson,
ithin
done
bf the
ound,
crime
ided,
ed by
such
n the
utive
ightly
k then
ioned
cy of
227
the evidence to sustain the charge. In order so to do, it becomes
necessary to examine the powers and duties of our Justices of the
Peace out of sessions, in their examinations into charges of indictable
offences against persons brought before them. By the 30th clause
of 102 cap. Con. Stat. of Canada, it is provided that in all such
cases the justice or justices shall,in the presence of the accused
person, take the statement on oath or affirmation of those who know
the facts and circumstances of the case. By the fifty-seventh
article it is provided, that if in the opinion of the justice the evi-
dence is sufficient to put the party upon his trial for an indictable
offence, although it may not raise such a strong presumption of
guilt as would induce such justice or justices to commit him for
trial without bail, then such justice shall admit the party to bail ;
the deduction, therefore, from the evidence the justice has received
from those who know the facts and circumstances of the case, in
order to justify his committal for trial, must be one raising a strong
presumption of guilt against the accused. Can it be pretended
that the justice having ‘three alternatives to choose from, all founded
on the comparative strength of the evidence against the prisoner,
viz., either to discharge him absolutely, to bind him over, or to
commit him for trial, that that discretion does not in fact give him
power to examine and weigh the evidence, in order to discover to
which course the character of that evidence forces him? If from
the nature of the evidence adduced, which in itself is incontroverti-
ble, it is “~parent that to commit him, or even to bind him over,
would ex,use the country solely to the costs of a trial, which must
result in the acquittal of the prisoner, the duty of the justice is
clearly to discharge. If, on the other hand, no evidence has been
rendered changing a primé facie case of felony, it is the duty of
the justice to commit. Can it be pretended that a man who has
acted as public executioner at the execution of a criminal condemned
by a competent court to death, would not, were he apprehended for
murder, be allowed before the magistrate holding the preliminary
examination, to produce the record of conviction and the document
proving his own status as executioner; and would it be pretended
that the magistrate had no right to examine into such evidence, and
that it was his duty to commit for trial for murder because it was
proved by the prosecution that a man had been hanged by the
prisoner? Numberless other cases may be cited in which the
doctrine advocated by the prosecution is shown in all its true ab-
surdity. This, let it be remembered, applies solely to cases arising
under our municipal law, where the injustice is suffered by one of
our fellow-subjects, and where his committal for trial, even for an
offence of which he is not guilty, can only, at the most, entail upon
ae the temporary inconvenience of imprisonmentin one of our gaols ;
228
but when the extradition to a foreign power of a man who has com-
mitted no crime avainst our law, but who seeks solely in a British
colony an asylum from the enemies of his country, and who trusts him-
self to the national honor of Great Britain for protection, is de-
manded, it becomes us to be exceedingly careful, lest in our anxiety
to concilitate powerful neighbors, we are not induced, in the elo-
quent words of Lord Palmerston, to violate the laws of hospitality,
the dictates of humanity, and the general feelings of mankind.
Let us beware lest we should be hereafter universally and desery-
edly stigmatised as dishonored, by our hasty conduct in this case.
The necessity then for a car eful and seerching examination of
the evidence in an extradition case is apparent ; all the facts and
circumstances are to be looked at with the greatest care, in order
that the magistrate may be fully satisfied that the prisoner really
has committed the offence of which he is accused ; he must beware
lest in a case of manslaughter he commit for murder ; he must take
eare that the offence is not larceny whilst he commits for robbery ;
but above all he must be satisfied that the man is guilty of the crime
with which he is charged. In the examination of this case, if we
can quote authorities from American authors, and cite precedents
from American reports, the United States government surely will
not complain of our drawing from their ar senals w capons wherewith
to combat their pretensions. The judgments of their Supreme
Court are acknowledged in England as of the very highest au-
thority, are cited at the bar as of the very greatest weight, and are
listened to by the Bench with the greatest respect and attention.
The very brightest ornament of that court, he Who in his lifetime
was acknowledged by all parties as the greatest judge who ever
adorned the benci in the United States, and who was pronounced
by Mr. Justice Story, in an address to the bar, to be the expounder
of the constitution of that republic, was the late Chief Justice
Marshall. His intellect was so essentially judicial that every
dictum of his is precious; his intuitive perception of law was so
marvellous as to enable him to discover the most recondite prin-
ciples at a glance. When then we have on record his deliberate
opinion on any point, we may almost defy the most wily sophist to
shake our confidence in the strength of the position taken. One of
the most masterly efforts of that distinguished man was made in the
argument before Congress, when the question of the extradition of
aman named Nash, alias Robbins, came up for consideration. It
would appear that Nash was one of the crew of H. M.S. Hermione,
which was taken possession of by mutineers, who, after killing some
of the officers, carried the vessel into a Spanish port. Years after,
a demand for the extradition of Robbins, under the treaty of 1794,
was made on the American, by the British Government, on a
of
nd
der
lly
are
ake
ry
ime
we
ants
will
with
eme
229
charge of murdering one of the officers of that vessel on the occa-
sion in question. Nash was extradited, notwithstanding he set up
in lis defence, and endeavored to prove, that he was an American
seaman who had been impressed on board the Hermione, and that
it was for the purpose of regaining his liberty that he had joimed in
the mutiny. Great excitement raged in the United States, the
case was brought before Congress, and it was in defence of his friend
and patron, George Washington, that the late Chief Justice, then
Mr. Marshall, delivered a speech on the subject, which for a time
silenced all opposition. Amongst the positions taken by him, was
the following: “* That had it been proved that Robbins was an
American—had been impressed on board the Hermione, and had
heen guilty of homicide in endeavoring to regain his liberty, such
homicide would not have amounted to murder, and he could not
have been extradited,”’—thereby clearly showing that in his opinion
the forcible impressment, if proved, should have been taken into
consideration, and that the person who rendered the decision was
bound to weigh all the evidence, even of justification, and to give
effect to all the circumstances surrounding the act, by which the
enormity of the crime might have been diminished or mitigated.
The next case in which any point of importance was decided is that
of Christiana Cochran, who on the demand of the British Govern-
ment, was extradited in the year 1845, on a charge of murder.
There the counsel for the accused interposed, as an objection, to
any further proceeding before the commissioner, a plea of insanity,
which, in the words of the (4th Atty.-Gen’s. opns., p. 202) Atty-
General’s opinion, was, after a full and impartial investigation,
overruled. ‘This, then, is a corroboration of the opinion expressed
by Chief Justice Marshall. The next case from which we can
obtain light is that of the Gerrity. ‘lhe schooner J. L. Gerrity
was an American vessel, owned in the Northern States. Previous
to her departure from Matamoras, a neutral port, for New York, a
number of men, amongst whom were the prisoners Tirnan & al.,
engaged passages to the latter port. Two days after the vessel
sailed, the passengers rose in arms, declared to the captain that
‘you are now to consider yourself a Confederate prisoner,” took
possession of the vessel and its contents, and sent the captain and
crew adrift in one of the boats. They were apprehended at Liver-
pool cn a charge of piracy on the high seas, and their extradition
was demanded under the Ashburton Treaty. For them it was
contended, 1st.—That piracy on the high seas was not an extra-
ditable offence ; ; 2nd—That they were acting on behalf of the Con-
federate Government, which was then at war with the United States,
and a recognised belligerent. It must be remembered that the
only proof of their belligerent capacity was the admission made by
230
the captain of the Joseph Gerrity, of the declaration to him
by one of the passengers that he was to consider himself a Con-
federate prisoner. No commissions, no instructions, from that
belligerent government were produced, nor was it proved, that
they were natives or subjects of the Confederate States; in fact
the presumption was that they were British subjects. And yet the
Chief Justice, who, it must be remarked, differed from the majority
of the Court with respect to the first pot, on which they were dis-
charged, observed with reference to the second, that ‘I concur
that persons although not subjects of a belligerent, and although
violating the laws of their own country by their interference in its
behalf, are not therefore chargeable with piracy. But, at the same
time, they cannot protect themselves from the consequences of
piratical acts by assuming the character of belligerents. The pri-
soners averred that they were acting on behalf of the Confederate
Government, and Mr. James is right in arguing that this is the
same as though they had hoisted the Confederate flag ; but we also
know that the flag of a country is frequently hoisted by pirates for
the better carrying out of their schemes, and we must look at al!
the circumstances to see whether or no the object of the pier
was a piratical one. I cannot say that, that was so clearly nega
tived as to oust the justice of jurisciction to commit the prisoners.”
We have here, the opinion of the Chief Justice of England, saying
that the judyes on habeas corpus ave bound to look at all the cir-
cumstances in order to come to a proper judgment on the nature of
the act. He, moreover, admits that the declaration of the prison-
ers that they were acting on behalf of the Confederate Government,
negatives, to a certain extent, the presumption that they were
pirates ; but he cannot say that that declaration without proof of
commission or instructions from the Confederate Government, so
clearly nega.ived the presumption of piracy as to oust the justice
of his jurisdiction to commit; but his opinion maintains most
strongly the principle that a prima facie case against a party may
be so destroyed by evidence of belligerency as to oust the justice
of his jurisdiction, thereby giving to the justice the judicial power
of appreciating and weighing the testimony. Mr. Justice Black-
burn in the same case makes use of the following remarks “ there
was evidence of piracy jure gentium and also evidence that the act
was a belligerent one in furtherance of the cause of the Confede-
rates, who are belligerents and so recognized. ‘The act then, so far
as the evidence goes, was either piracy jure gentiun, in which case
we are not empowered to give them up, or it was the act of belli-
gerents, and therefore triable neither here nor elsewhere.’ It
must be admitted that there really was very strong evidence of
piracy, and very weak evidence of belligerency in the case in ques-
im
On-
hat
hat
‘net
the
rity
dis-
eur
ugh
; its
ame
3 of
pri-
rate
the
also
3 for
t all
ners
231
tion, the only fact to show the latter character being furnished by
the declaration of the prisoners, which the Chief Justice likened to
the hoisting of a flag. In the case of a vessel attacking and cap-
turing a French merchantman, such vessel would not be relieved
from the imputation and consequences of being a pirate by showing
that at the commencement of the attack she hoisted a Mexican flag,
if she did not produce either her commission as a man-of-war in the
Mexican navy, or letters of marque authorizing her to cruise as
privatecr. Mr. Justice Blackburn very justly “remarks also, that
if it were the acts of belligerents, it was triable neither in E neland
nor elsewhere, thereby showing conclusively that in his opinion,
proof of the belligerency hefore the magistrate took the case out of
the treaty. The next ease demanding our attention is that of the
Roanoke, which was taken possession of on the high seas, by a
party of Confederates under the command of an officer, who had
taken passage in her from a neutral port. They were arrested at
one of the West India Islands on a charge of piracy. At the pre-
liminary examination before the magistrate, after evidence of the
act of pretended piracy had been gone into, the officer in command
produced his commission and instructions, and thereupon the Attor-
ney-General for Her Majesty abandoned the prosecution and they
were discharged. In the natural order of things we now come to the
case which without doubt is the cheval de bataille of my friends on
the other side, the one containing according to their ideas the concen-
trated principles of law applicable to the facts of the St. Albans raid,
and one so perfectly analogous that it absolutely puts an end to all
our pretensions. I mean the Bur ley case. The opinions pronounced
by the Upper Canadian Chief Justices and Judges have been sub-
mitted to the decision of the civilized world, and have become a por-
tion of the property of the nations of the earth. ‘Those opinions,
therefore, are now open to critical examination, and any one wish-
ing to satisfy himself upon the responsibility incurred hy belliger-
ents in visiting neutral countries, would be forced into inves stivating
the correctness of the principles therein laid down as 1 regulating the
course to be adopted in all cases, wherein extradition should be
demanded. The questions naturally arising in that case were of
vast importance, affecting not only the prisoner, but in their conse-
quences touching the question of peace or war between Great Bri-
tain and the United States. ‘The law of the Province of Canada was
not the only system of jurisprudence involved, but the International
law of the glohe presented itself for discussion. The rights of bellige-
rents, the ‘duties of neutrals, the sovereign powers of governments
and the individual safety of subjects presented themselves in turn for
consideration and settlement. For the nonce then the judiciary of
Upper Canada lost their character of Colonial judges and occupied
232
the distinguished position of expounders of the principles of Inter-
national Law. Their position in the face of the world was the same
as that adorned by the late Lord Stowell in England and Chief Jus-
tice Marshall and Judge Story in America. 'T'o those eminent jurists
is society indebted in a great degree for the maintenance of those
principles of International Law, which regulate the intercourse of
nations in peace and inwar ; and to them is due the credit of having
dissipated the many erroneous theories advanced by publicists as
forming part of the law of nations. ‘To them alsois due the praise of
having in every instance which came within their ken upon the
Bench, administered justice without fear, favor or affection, to all
who appeared before them as suitors. It behoves us then to inquire
whether the recent judgment on the application for Habeas Corpus
in Burley’s case is based upon the principles of law applicable
thereto, or whether either through ignorance or a base subservience
iv popular opinion or to Governmental pressure, the judges of
of Upper Canada have shown themselves unworthy of the position
they occupy. Let us then on this occasion examine with due care
the principles which by those judges are declared as governing their
decision ; and discover whether the conclusion arrived at is one justi-
fied hy the facts proved, and whether the principles invoked by the
Bench were rightly or crroncously applied. ‘The first proposition
made in the order is that the question of the act being a belligerent
act is one solely for the conside ation of a jury in the United States.
The second is that an officer in the navy duly commissioned in the
service of one belligerent, is not authorized thereby to wage all acts
of hostility on the lakes or sea against the property and persons of
subjects of the other belligerent. “The third is that where the officer
in command of an expedition deviates, in his discretion from the
line of conduct laid down for his guidance in his instruction, the
subordinate officers and men under his command by obeying orders
so to deviate, thereby lose their character of belligerents, and are
responsible criminally for any acts they may commit which in time
of peace would constitute crimes. ‘The fourth is that a violation of
Canadian neutrality aggravates crime committed in the jurisdiction
of the United States. ‘The fifth is that a judge, in a neutral
country, has a right to inquire into any deviation by the officer
of a belligerent power duly commissioned in war, from the pur-
port of his commission, on the demand of the other belligerent,and
can thereupon declare that in so deviating he committed an offence
against the laws of the other belligerent, and order him to be con-
fined, preparatory to extradition to his enemy. ‘The sixth is, that
such proceedings by the judge are not in violation of Her Majesty’s
proclamation of neutrality. It might perhaps be as well here to
refer to some of those causes eélébres which have rendered the
er-
me
us-
ists
ose
» of
ing
3 as
> of
the
all
re
pus
uble
nee
3 of
tion
pare
heir
isti-
the
ition
rent
utes.
the
acts
s of
icer
the
the
ners
are
ime
of
ion
tral
cer
bur-
nd
nce
233
Upper Canadian Bench and Bar so famous throughout the world,
Heaven knows that we poor Lower Canadians have no pretension
to cope with them in any field of either industry or talent. We are,
with all due self-abasement be it spoken, an inferior race fitted by
nature for the barren, bleak, miserable country we inhabit. Content
to live and die as our fathers did before us, we exist without any
of that noble fire wich occasionally leads men to do decds reflecting
honor on their native land. We plod on in. the weary round of po-
litics and law most congenial to our temperaments ; we cling to the
Coutume de Paris ; we reverence Blackstone ; we dislike novelty,
and we abhor new fangled ideas of jurisprudence. We have been ridi-
culed and laughed at for our stolidity. We have been abused for
our ignorance. We have been told that the Bench of Upper Canada
is composed of men renowned, alike for their talent, learning and
integrity. We have been assured that celebrated men cluster at
the bar of that portion of the Province, thick as grapes in a vinery.
We have been advised to listen to the words, pregnant with research,
and learning, uttered by the ministers of justice in that favored por-
tion of God’s earth.— We have been recommended, in lieu of study-
iny the speeches of Erskine, Curran, Burke, or Plunkett, to open
our ears to the ravishing melody of the utterances of Upper Cana-
dian counsel, and from the models of eloquence and style by them
set before us, to form our ideas of the persuasiveness and powers
of .‘emosthenes and Cicero. We had fondly fancied that had the
Upper Canadian Bench but the opportunity, the exceeding talent
and learning of its members would have been so displayed before
the eyes of the whole world, that scientific men throughout Europe
and America would have hailed them as worthy recruits to the select
band of international jurists whose writings have shed light on the
darkest pages of the law of nations. We in this Lower Province,
would have humbly rejoiced at the glory thus reflected on
our native land by its distinguished citizens, and the cosmopo-
litan reputation of Canadians would have kindled a blaze of en-
thusiasm in our frigid bosoms. But alas, how has the reality
deceived us! On two different occasions the Upper Canadian
Bench has been tried, and on both found wanting. The case of
Anderson, the negro apprehended for slaying a man in Missouri,
who endeavored to arrest him whilst making his escape from slavery,
was the first which shook our confidence. There the Court of
Queen’s Bench laid down the monstrous doctrine that they
could not take into consideration the other facts depriving his act
of the criminal complexion, but were bound by the mere fact of his
having killed a man, to commit him for extradition. A trial ina
slaveholding country being a necessary consequence, and Ander-
son’s execution being the only conclusion whey naturally could expect
234
from that action. Not content with thus perverting the law as
applicable to the negro’s act, they arrogated to themselves a juris-
diction to which they had no right, and committed the accused
upon their own warrant for extradition. Public opinion in England
roused by this frightful injustice, pronounced itself so strongly
against the judgment and action of the Upper Canadian Court,
that a writ of Habeas Corpus was issued from the Queen’s Bench
in England, to bring Anderson, and the commitment under which
he was then held, to England before a tribunal competent to
appreciate and understand. the principles of law applicable — to
the facts. Struck with dismay at the issue of the English
writ, the Upper Canadian Judges resolved to burke all such investi-
gations, and from the Court of Common Pleas issued a writ of
Habeas Corpus under which the commitment of the Court of Queen’s
Bench was quashed as having been made without jurisdiction, and
Anderson was thereupon discharged. Such were the facts and cir-
cumstances of the first case in which Upper Canadian Judes had
an opportunity of showing their acquaintance with the principles of
International law. It must be admitted that it was a miserable
finale to the grand display of learning and argument exhibited by
the Court of ‘Queen's s Bench, when they declared that it was their
duty to commit him for extradition under a warrant which, clearly
they had no right to issue, to be obliged to call in their brethren of
the Common Pleas to free them from the embarrassing position in
which they then were, thanks to their own ignorance ; but Upper
Canadian credulity is quite equal to Upper Canadian vanity, and
the public of that portion of the Province were still more dceply
persuaded of the intellectual faculties and learning of their judges,
by the exceedingly sharp and skilful manner in which they had
managed to elude the action of the English Courts in the matter.
But to return to Burley’s case, the Upper Canadian Bench taking
no heed to the outburst of indignation in England, and in fact
throughout the civilized world at their ruling in the Anderson case
above referred to, again in this case advanced the doctrine that the
judge or magistrs ite in Extradition cases could not consider any
evidence which might be given before him tending to destroy the
heinousness of the offence charged. They, in fact, decided that
if-by any testimony it is proved in any Extradition case where
the charge is murder, that a man has been killed, that it is no part
of the duty of the judge or magistrate to quire into any other of
the circumstances tending to show either that it is manslaughter or
justifiable homicide, those are questions according to their doctrine
for the consideration of a jury of the State wherein the act was
committed. By a parity of reasoning, if a rebellion were to break
out in the State of New York, and men were killed by the rebels,
as
ris-
sed
and
gly
urt,
neh
ich
, to
. to
‘lish
esti-
t of
en’s
and
cir-
had
3 of
able
1 by
their
arly
on of
n in
pper
and
ply
ges,
had
ter.
ing
fact
pase
the
any
the
hat
here
art
r of
r or
ine
was
eak
els,
235
who should afterwards seck refuge in Canada and be demanded by
the United States authorities, our judge or magistrate should
commit for Extradition on the gound of murder, having been com-
mitted, leaving to the jury of United States citizens, the right of
deciding whether the crime really was murder or treason ; thereby,
in fact ‘declaring that the Extradition treaty has done away with
the right of asylum for political refugees in Canada. They have
forgotten that this committal for Extradition is, so far as this
country is concerned, a final judgment; and surely if we do not
wish to be looked upon as the most pusillanimous cowardly race
upon the face of the earth, some stand must be made against this
departure by judicial authority from the traditional pohie, v of the
empire, J ide Expte Bollman et al., Marshall on the Constitution
(on } be 33 to 41), the People v. Martin, et al, 7 N.Y. L. Observer
(p. 52 to 56). 4 Opinions Atty.-Gen. p. 202. The other points
laid down by the judges will he considered as they present them-
selves in the order of my argument.
Abandoning for the moment the general principles of Ex-
tradition, and the cases cited. I proceed to address myself to
the facts of this case. On the 1th of October last the town
of St. Albans, in the State of Vermont, one of the so-called
United States of America, was thrown into consternation by the
appearance of a body of twenty-one armed men whose leader
declared that he was a Confederate officer dispatched by his govern-
ment to take the town. Parties of men were dispatche: d to different
banks where, in each instance, after declaring that they were
Confederate troops sent to retaliate for the outrages committed by
Sherman and Sheridan, United States officers, in the territories age
Confederate States, they forced the officers of those banks t
deliver up to them divers valuable securities of the United States,
worth about half their nominal value, and all the bank notes in
the institutions at the time. I wish to draw your Honor’s atten-
tion at this stage, to the fact that bank notes and securities for the
payment of money arc, under the declaration of the Government of
the United States, contraband of war, and liable to be taken from
a neutral vessel under the same circumstances as would justify the
forfeiture of munitions of war. Whilst in the bank these scenes
were going on, another party had been detached to secure horses
and equipments for the raiders. A sutlicient number was procured
to mount them all. In the interval a number of United States
citizens had been taken prisoners, and were conveyed to and kept
under guard in a public square. During the time a party of the
raiders were in possession of the St. Albans bank, a person of the
name of Breck entered to pay a note. He was informed that he
was a prisoner to the Confederate troops, and the money which he
= = ee
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Selves into a separate republic, under the name of the Confederate
236
had brought with him was taken from him by one of the two
raiders then in the bank. A skirmish then ensued between the
raiders mounted, and the townspeople who had armed themselves.
An attempt to fire the town was frustrated, and the raiders being
formed in military array retired from the town pursued by some of
the citizens, who fired upon them in their retreat. A pursuit was
organized, but the whole party of Confederates succeeded in cross-
ing the line to Canada, where, without warrants or sworn informa-
tions having been laid, thirteen of them were arrested by the
country magistrates and constables. So soon as the news reached
Montreal and Quebec, Judge Coursol was despatched to the fron-
tier to conduct the proceedings, and was ordered, by the Attorney
General, to arrest the offenders without waiting to make out infor-
mations or to draw warrants. It is unnecessary for me here to
vive any further details of the proceedings had before Mr. Justice
Coursol, for they are now matter of history. The facts of the raid
as given above are in evidence before your Honor. ‘The commis-
sion of Bennett H. Young in the Confederate army, and his
instructions to form a corps of tw enty Confederate soldiers, escaped
prisoners of war; his instructions to report for orders to Messrs.
Thompson and Clay, and his instructions to report to Mr. Clay
alone for orders, are fully and satisfactorily proved in this case.
The actual orde1, to make the raid, signed by Mr. Clay, has
been produced and proved ; and the muster rolls of the different
companies, to which the prisoners belong, in the Confederate service
are also before the Court, authenticat ted by the proper authorities.
From these papers no other deduction can be drawn than that on
the 19th of October last Bennett H. Young was an officer in the
service of the Confederate States, in command of a party of Con-
federate troops, detailed for special service by that Confederate
Government to St. Albans, in the State of Vermont, with which
the Confederate States were then at war, the State of Vermont
then being one of the United States-—which war by Her Majesty
had previously been acknowledged as a perfect war, and by Her
also Her subjects had been warned to maintain and keep a strict
neutrality between the parties contending. It is necessary here
to refer to a point in this case of vast importance, with reference to
the very existence of the treaty, under the provisions of which the
extradition of the prisoners is demanded. Since the date of the
treaty, five or six States have been admitted into the Republic, at
that time composed of a number of sovereign States recognized by
the world as a government under the name of the United States.
Since that date, nine or ten of the States forming a portion of that
Republic at that time have seceded therefrom and erected them-
QO”
~
ot
States. Can it be pretended that Great Britain has the same
rights, against the United States, which can be granted to her now,
as at the date of the passing of the treaty. Ifaman commits a
crime in Canada and takes refuge in Richmond, can the Govern-
ment of the United States extradite him on the demand of the
British Government. If, on the contrary, a man commits a crime
n Texas, which was only admitted into the Union in 1845, and
which was in 1842 an independent State, can he be extradited
on demand of the United States Govei nment if he secks a refuge
and be apprehended in Canada? Neither of the two cases was
anticipated at the date of the treaty, and it cannot be pretended
that the clauses of a convention between two nations are, a whit
more elastic than the terms of a contract between individuals. It
is also to be remarked that the Constitution of the United States
is sinenJar in its formation; the rules applicable to : monarchy do
not ayply to arepublic. ‘Treaties between monarchies or empires
are made by the monarchs or emperors; but the United States
always made their treaties in the federal capacity of a number of
sovereign States constituting the United States. This, then, was
nothing more or less than a republic, the sovereignty of which was
immediately dissolved by the breaking out of civil war between
the several sovereign States of which it was composed : for in a
republic the sovereignty subsists solely in the union of the mem-
bers of the republic. 1t may be urged that this is a question for
the consideration of the Government of Great Britain alone, that
it falls within the powers of the Executive, and that judg res are
bound in these matters to conform to the rales of conduet laid
down by the Goverment, and that the United States being still
recognized by the Queen, you are bound still to presume the exist-
ence of that republic.
To the student the difficulties met with in his search for the true
principles of the law of nationsare almost insurmountable. Apart
entirely from the impossibility of clearly defining all the principles of
that law, iflaw it really can be called, which does not provide or admit
of a judge in the contentions of the parties, who, itis pretended, are
bound by its rules—whose principles no machinery exists to enforce,
and whose spirit and letter can be infringed by any nation strong
enough to set its enemy at defiance ; the numerous commentators
upon “international law have to a very great extent, by their incau-
tious labors, tended to burthen the student with the task of seeking
amongst their private opinions of what should be, what really is the
law of nations. They have, without due consideration, adopted the
usage of two or three of the nations of Europe within the last few
years, as legal amendments or inodifications of that law on the sub-
ject of war, taking it for granted that those nations have a right to
cee
238
dictate to the rest of the world the proper course of conduct to be
pursued by belligerents, forgetting that all nations are equal, and
that no nation is bound to submit to the dictation of another. They
have also taken conventions contained in treaties as declaratory of
existing law, whilst really treaties must be looked upon as means
for obtaining the recognition of principles exceptional to the general
rule. But few of the writers of this century, if any, have shed any
light upon that law, and in order to obtain a faithful insight into its
principles, boldly, perhaps coarsely portrayed, we must refer to the
publicists of the last two centuries. Ofcourse in so speaking I
make no reference whatever to the cases decided in the English
Admiralty and in the United States Supreme Court, which are all
of the highest authority and are moreover founded on and sustained,
by, the writings of the authors, who flourished in the seventeenth and
eighteenth centuries.
[I have now arrived in this case at that particular point
where it becomes necessary to consider the rights of belli-
gerents. Wars of old were divided by the commentators into
perfect and imperfect; the perfect war is also called public or so-
lemn, and is where one whole nation is at war with another whole
nation ; an imperfect war is one limited to places, persons and
things. A civil war, when it has attained sufficient magnitude to
induce foreign nations to declare their neutrality, is a perfect war.
In such perfect war both parties are belligerents, and entitled to
all belligerent rights given by war to sovereign governments. It is
perfectly clear that so soon as war breaks out between sovereign Go-
vernments, the municipal criminal codes of the belligerents are silent
and inoperative guoad acts committed by the troops of either of the
belligerents in the territories of the other. War is a recourse to
violence, to repress which municipal criminal codes are instituted.
But war is legal. Under the law of nations that law is superior to
any municipal code. <A perfect war gives the right-to tie members
of one belligerent nation to kill, spoil and plunder the members of
the other belligerent nation wherever found, except in neutral ter-
ritory. Such being the case the municipal codes having for their
object the punishment of parties killing, plundering or committing
other violence, are guoad members of the other belligerent nation
paralyzed by the superior authority of the law of nations during war.
Inter arma silent leges. All offences committed by members of
one belligerent nation upon the members of the other on that others
soil,—are within the jurisdiction of military tribunals solely, and
are gauged by the laws of war. That this doctrine is recognized
in the United States cannot be denied. ‘The President’s proclama-
tion of the 24th September, by which the power of the judiciary
was abrogated in cases affecting individual liberty and the establish-
259
ment as matter of fact of martial law throughout the limits of the
former United States, as well the loyal as the rebel, shows conclu-
sively the correctness of the position by me taken. If further proof
be wanting, take the case of Beal, the leader of the Lake Erie
expedition, for participation in which Burley was extradited as a
robber, and gather from the proceedings and sentence of the court-
martial held on him and its approval by Gen. Dix, whether the
Upper Canadian judges were justified in believing that he would
have a fair trial before a jury. It has been held by some authors
of late years, that only the regularly commissioned officers and
enrolled troops of one belligerent are authorized to enter into hos-
tilities against the other belligerent. Without admitting that pro-
position, still as this case presents the prisoners in those capacities,
Tam, for the sake of argument, willing to adopt it as the rule.
Nativuns are sovereign. If the Government of one belligerent
chooses to despatch a body of its troops into the territory of the
other belligerent, with instructions to devastate and lay waste that
territory, and those troops do so devastate, plunder and lay waste
that territory, and commit any other hostile act therein not mentioned
in their instructions, the other belligerent has no right to say to
them, if captured, you are but marauders, for you have exceeded
your instructions. ‘The mere production of the commission of the
© icer commanding such force is proof of authority to him, by the
nment of his country, to wage all acts of hostility against the
- ots of the other belligerent permissible under the law of nations.
He then is in the position of a recognized agent of lis Goverment,
and his acts are not individual, but national, for which his
Government alone is responsible. Should he exceed his in-
structions, he is responsible to his own nation solely and exclu-
sively for such excesses. If he deviate therefrom, so long as he
does not commit any act contrary to the general rules of war, he
cannot be called to account for it by the other belligerent, or by any
nation on the face of the earth. An act of hostility then comiaitted
by the officer of a belligerent commissioned in war, on the soil of the
other belligerent is an act of the nation by which he is commissioned,
for which no individual responsibility is incurred. That this is the
case is proved so clearly and decidedly by the joint admissions of
the British and American Government in the McLeod case, that
the opposite pretension is hardly worth arguing against. During
the rebellion in Canada of 1837, the American steamer Caroline
was made use of by the rebels and American sympathisers to carry
supplies to the rival forces on Navy Island. The vessel usually lay
during the night at that Island, and an expedition was organised
under the command of Captain Drew, R. N., to cut her out from
her moorings ; but on its arrival at Navy Island, it was discovered
Tpit 7
240
that the Caroline had been removed to the American side of the
river, and was then lying at a place called Schlosser, in the State
of New York; the expedition, however, proceeded, attacked the
boat, carried her by boarding, and in the skirmish a man of the
name of Durfee was killed on the soil of the State of New York.
The Caroline was then towed out into the rapids, set on fire, and
sent over the Niagara Falls. A person of the name of McLeod
visiting in 1840, Manchester, in the State of New York, was ar-
rested for murder on the charge of being one of the party concerned
in the cutting out of the Caroline and killing of Durfee. Iwas at
Manchester at the time, and remember perfectly that the
only person who exclaimed against the arrest was a gentle-
man from the Southern States. In the diplomatic cov. >-
spondence which ensued, it was clearly admitted by both
the American and British Governments, that troops acting under
orders, and even killing the citizens of a nation at peace with their
own on that nation’s soil were not guilty of murder, although the
commander had actually exceeded his .nstructions, which did not
authorise his exercising any act of hostility on the neighboring
nation’s territory. Is not this a much stronger case than that of
the St. Albans raiders, to prove the virtue resident in a commis-
sion of an officer of the British Navy ? The acts com-
mitted by Young and his command were done in an enemy’s
country ; those by Drewand his command in the country ofa friend ;
yet in the latter case the Governments of both countries declare
that the acts are not crimes; whilst in the former it is pretended
thatthey are. ‘There is also in existence in the United States an act
of Congress giving legislative expression to tne doctrine of the new
responsibility of a commissioned officer, passed on the 8th August,
1842. A great deal, no doubt, will be said as to the fact that the
raiders were not in the uniform of the Confederate army ; but
stratagem and deception, so long as no perfidy is used, are quite
permissible; the ambush, the disguise of uniform, the false flag,
are allowable. ‘Those who trust themselves to such devices may in
the two latter cases be treated as spies, if captured in the at-
tempt to deceive, or ere their departure from the enemy’s country ;
but once beyond the boundaries, the enemy is not justified by the
laws of war, if afterwards taken prisoners (3 Phillimore, p, 141), in
treating them otherwise than as prisoners of war. No other power
then, having the right to enquire into the fact whether or no
such commissioned officer has exceeded his instructions, the Go-
vernment which commissioned him is the only one entitled to find
fault with or punish him for any excess or dereliction of duty.
The duty of neutrals now, fora brief space of time, must occupy my
attention; but this branch of the law of nations, so far as this case
241
is concerned, is one which presents no difficulty. The authors are
quite unanimous, it may be said, as to the neutral having no right
whatsoever either to interfere in any way in the war, or to express
an opinion upon any of the acts of the belligerents. It is to be re-
membered, that the action of our courts of justice in this matter
must follow the action of the Government of Great Britain. That
Government has declared its neutrality in the war between the
United States and the Confederate States--thereby informing all
our courts, judges and magistrates that the municipal criminal codes
of those two Governments are silent and inoperative, so far as mu-
nicipal crimes committed by the citizens of the Confederate States
on United States soil are concerned, and that the law of nations
alone is in force between the two Governments and their respective
troops and subjects. ‘Thus our courts and judges, in cases where
charges are brought against any persons by the United States Go-
vernment, of having committed crimes within the limits cf the so-
called loyal States, should in the first place inquire whether the person
so charged is a Confederate officer or soldier; if he be such officer
or soldier, the criminal code and common law of the State, within
which the act charged was committed, are not binding upon him;
the extradition treaty does not apply; he must be discharged.
Can it be pretended that you, Sir, have any right to dictate to the
Confederate States, the rules of war which they are bound to
observe ? that you, a municipal judge, can step forth and say to the
rising tide of the fierce passions and fiery hate engendered by this
frightful war, ‘so far shalt thou come, but no further?” Or do
you think that you would be discharging your duty to your
Queen and country, by acting the part of Provost Marshal to
the United States in capturing prisoners of war to swell the
numbers now confined at Camp Douglass and Johnson’s Is-
land? If in this case you take upca yourself the responsi-
bility of committing these men for extradition, you will violate
the Queen’s proclamation of neutrality, and will place yourself on a
par with the bench of Upper Canada. ‘The pretended violation of
our neutrality laws has really nothing to do with this case. Had
they marched through with drums beating and colors flying, it would
have been a grave offence ayainst our Government; but it cannot ag-
gravate, in the slightest degree, the acts of hostility afterwards per-
formed in Vermont. (‘The learned counsel here cited from Historicus,
pp. 152 to 162, in maintenance of his position, apologising to the judge
in the words of Historicus, for breaking a butterfly on the wheel.)
The learned counsel on the other side have, in accordance with
their instructions no doubt, persisted in calling the prisoners robbers
and murderers. They appear to have imbibed the prejudices of
their client, the United States Government, and to be unwilling to
Q
ns aera
<
242
admit that our clients have any claim to be belligerents. The people:
of the State of Vermont are, it is said, frightfully excited at the
idea of one of their towns having been captured and held for three
hours by a band of twenty-one pretended Confederate soldiers.
The booty taken from the banks, no doubt, has also tended to exa-
cerbate their feelings, and they still continue to brand the St.
Albans raid as unsoldierly, dastardly, in violation of the rules of
war, and perfectly fiendish. They all seem to take it for granted,
that the Government of the United States wages war after the mildest
fashion, on the idea of doing the least possible harm to the enemy.
No pillage, say they, is permitted; women sleep tranquilly in
the rebel States, within the sound of the bugles of our regiments ;
children are cared for by our soldiers with paternal love; pro-
perty of every description may be before our troops for days
without an article disappearing; our men are models of bravery,
honesty, and morality; our generals are gentlemen, and Christians.
And yet what does the record of daily events show us? That this
verily is a civil war waged by the North against the South, with all
the barbarity of the thirty years war, must strike every observer.
It is the old feud of the Cavalier and Roundhead rising like a phoenix
from its ashes, and bathing the soil of this continent in gore. It is
a strife wherein the father meets his son at the point of the bayonet,
and where the brother imbrues his hands in his brother’s blood. It
is a carnival of blood ; and can it be wondered at that man, drunk
with the odor of carnage, should forget that he was framed after his
Creator’s image, and do deeds which bring him to the level of the
wild beasts ? It may be as well here to refer to a couple of instances
to show the humanity and Christian feeling of the commanders of the
Northern armies. Sala, in one of his letters, gives on the testimony
of an eyewitness, relation of the following facts: a boy of fifteen or
sixteen years of age was convicted of having in his mother’s house
a rifle, and was sentenced to die ; his mother and sister fell on their
knees before the General commanding, begged that the boy might
be spared, the poor child in the meanwhile ignorant of his impending
fate, patting the neck of the general’s charger. His only reply to
their agonized entreaties was, that they might have his body, and
giving a sign, the unfortunate boy was marched five or six paces
to the rear, when the orderly, placing a revolver to the victim’s
head, blew his brains out, in presence of his mother and sister.
The other case to which I refer is that of a lady who perchance
may be amongsi those, who now hear her melancholy story. Her
husband, a major general in the Confederate service, having been
killed on the field of battle, she desired to go to England, his native
land. ‘The President of the Confederate States, waited upon, and
for the republic, bought from her, all the cotton then on her planta-
243
tion, paying her therefor $15,000 in cotton bonds. With those
bonds in her possession and $25 in gold in her pocket, she reached
New Orleans. There she was arrested, her money and bonds taken
from her, and in a strange country she was turned out into the
streetsto starve. So much for the humanity of the North to Southern
women and children. Let us boast of man’s moral improvement as
much as we may—let us flatter ourselves that we are now Christians
—let us blame the fierceness in war of our ancestors but let the mail-
ed hand of civil war but touch the gossamer toga of civilization, and
it will fall from the shoulders of the man of the nineteenth century,
revealing him in all the nakedness and barbarism of the dark ages of
the world. It is a sadand melancholy prospect for any man of the
Anglo-Saxon race to behold that fair Republic which, though but
an infant in years, was a giant in stature, and which but a few short
months ago was the home of freedom and the asylum for the per-
secuted races of Europe, now the theatre in which the most absolute
despotism is exercised, where liberty is no longer known save in
tradition, and where those who seek an asylum from the persecution
of the task-masters of Europe, are driven, like cattle to the shambles
by the speculators in human blood of the New World. Itis impossible
I say, for any man with British blood in his veins not to admire the
heroic valour and determination which have caused the Confederates
so often to triumph over what were thought to be insuperable
difficulties. Though their cause may now look desperate, that
valor which has enabled them ere this to knock at the door of the
Capitol will, I verily believe, inflame them to repeat the attempt
sucessfully ere this war be concluded. Such I believe to be the
sentiment of every Englishman in whom the disgusting love of trade
has not destroyed the traditions of his mother country, and his own
inborn love of fair play and hatred of tyranny.
I must now apologize to you, Sir, for the great length of time
that I have taken in laying before you my views of this case. I
have referred to the responsibility of the counsel engaged; I may
now perhaps be permitted to remark upon the weight of responsibi-
lity assumed by you, to which ours is but as a feather. You have,
Sir, in this case an opportunity of immortalising yourself as a jurist :
this is not an ordinary suit coming before a muncipal tmbunal,
which by all persons save the plaintiffand defendant will be forgotten
in aweek ; it is one which in after years will reflect credit on you
throughout the civilized world, if you render a sound judgment. If
on the contrary through carelessness or from any other motive, your
decision is unsound, you bequeath to your children an unenviable
name.
In conclusion, I trust that your Honor will ascribe the imperfection
of my argument, not to the weakness of the prisoners’ case, but to
my inability to do justice to their claims.
ae sen cane ttt
244
Mr. Laflamme, Q.C., said :—
If it were possible to divest this case of all interest, prejudice,
and passion,—if the naked propositions of law and fact, upon which
it rests, were alone submitted for decision, the task would be easy.
If the demand were made by some small republic of South America
for the extradition of five commissioned soldiers, engaged in a civil
war there,—admitting that they had violated all the laws of hospital-
ity and neutrality of a neighboring country,—no argument would be
required. Unfortunately for the prisoners, their deeds have created
a deep and general sensation. ‘I'he feelings of their enemies—our
too powerful neighbour—have been aroused: violent language was
used towards Canada, whom they held responsible for this injury.
Our community felt that war was impending ; every individual
already contemplated his ruin in the ruin and desolation of the
country. The ,uilty or innocent causes of such anticipated disasters
could not expect much sympathy or favor from those upon whom
they were to precipitate such calamities. Every one believed that
the only manner of averting these calamities, was by soothing, at
any price, the anger of our neighbors, who were loudly claiming
the surrender of the prisoners. Fear left no freedom to the ap-
plication of any rules of law or justice. ‘The prisoners were styled
common robbers, their act an outrage against humanity. Ready-
made doctors of international law laid down the doctrine with all
the dogmatic assurance of ignorance. It is, moreover, in human
nature to shape principles according to necessity, and to assent to
any doctrine favoring its interest. ‘The Government, from the
highest to the lowest official, and their servile instruments, were
most active in disseminating these ideas. From this so contrived
and made up opinion, a universal notion seemed to pervade the
whole community, that the case of the prisoners was a difficult, a
hopeless one. ‘hose ou whom they had to rely for support were
few and powerless. ‘Their Government was distant and weak;
whilst their enemies were almost amongst us—over us, dictating
with undisputed authority, and obeyed with crouching docility.
It is against these difficulties that we have to contend, more than
against any real legal obstacle. ‘The question submitted involves
a question of British liberty. To its decision is attached the lives
of five men; and the main issue 1s between two nations,—one asking
that these men shall be declared robbers and murderers, to be
treated by them as such ; the other asserting that they are brave
and dutitul soldiers, having inflicted upon an enemy none but a
well devised and well executed injury. It is with a sense of shame
that one thinks, in a matter involving principles which a British
subject ought to hold most sacred, that fear might oppress justice.
The rendition of the prisoners, owing to such a motive, would be a
om= 2 fe)
wee eo oan s
so ©
245
shock even to the intelligence and sense of justice of the nation
claiming them. They are a great, a powerful, but above all, a
most intelligent nation. None have more strongly and ably
advocated, or more liberally construed the great principles of
individual liberty, the freedom of the soil, the inviolability of the
asylum offered by them to every individual, excepting only those
who have committed crimes against the laws of nature. ‘They do
not, and can not expect any deviation from the rules which they
have so clearly laid down. ‘The refusal of this application, if justi-
fied by sound principles of international law, will be approved of
and admired by them; whilst any hesitation would imply a suspi-
cion of their sense of justice, and betray a timidity on our part, to
call it by no other name, which would breed contempt and invite
them to urge the most extravagant pretensions.
The prisoners are accused of having robbed one Breck, in
St. Albans, on the 19th of October last, of $300. What are
the facts of the case, as disclosed by the evidence adduced
before your Honor? In the month of September last, Ben-
nett H. Young, a lieutenant in the Confedetate service, being
in Chicago for some political object, calculated to advance the
cause of his country; finding it impossible to carry out this
plan, determined to fulfil the instructions which he received
from his Government, to raise a body of twenty men of escaped
Confederate soldiers. He was commissioned for special duty ;
they, as soldiers, were bound to join and obey. ‘The plan was
organized, then, in the enemy’s territory. They were enrolied by
him for the purpose of making an attack upon, and sacking the
town of St. Albans. All of these men were risking their lives by
their presence in the enemy’s country. The bare fact of organizing
there was, of itself alone, a bold and daring act. Their allegiance
was to the Confederate States. Be the unfortunate contest, in
which their country is engaged, right or wrong, they were actuated
by the most noble, the most disinterested and patriotic motives :
every one of them had already perilled their lives in their country’s
cause. Feeling, as they did, for the injuries committed against
their native land, they thirsted for revenge. Called by their
superiors to inflict punishment on their enemies, by burning and
plundering the town of St. Albans, they cheerfully obeyed ; they
proceeded to carry out that plan, so far as was in their power.
They left Chicago, some four or five coming through Canada, and
twenty meeting in the town of St. Albans, inhabited by over five
thousand inhabitants, at a distance of eighteen mile frem the fron-
tier. In open day-light, they collected together, armed with
revolvers, took possession of three banks in the name of the Con-
federate States, sacked them, set fire to the town in three places,
246
and from the beginning stated that they were Confederate sol-
diers. ‘The prisoners went through the town, made prisoners of
all they met, provided themselves with horses taken from the
people ; and after making perhaps double their number of pri-
soners, they left the place, pursued by an armed band of citizens,
who kept close fire upon them. They, however, succeeded in
making their escape to Canada, where thirteen of them were
arrested, at the request of the United States authorities. Out
of the whole of this expeditiou the prosecution has thought
proper to single out the taking of Mr. Breck’s money, the
smallest incident in the whole transaction ; a fact which cannot,
with any reason, be abstracted or severed from the main project.
It is unnecessary to dwell upon the dreadful civil contest which
has now been raging for five years with uninterrupted fury in this
once happiest country in the universe. The world has followed the
history of this awful struggle with surrow and dismay. Eleven
independent States have asserted their rights as free members of a
voluntary association, to sever from this association, which they
had formed for their individual interest, reserving to themselves
their separate sovereignty. ‘I'welve millions of the people of this
democratic nation demand to govern themselves according to their
own views, alleging violations of the original compact, aggression,
interference, and oppression of their individual States by the others,
and for open threats against their rights and liberties. This sepa-
ration is denied them by the other States, because they are more
numerous and powerful,—because more States being combined in
one policy, they, the more powerful party, believe that subjugation
and coercion is just and lawful, and they insist upon imposing their
will, their views, and their ideas upon the eleven independent States.
The fifteen States on one side insist on ruling the ten refractory
States. The twenty millions of the North claim and insist upon
uncompromising obedience from the twelve millions of the South.
The whole popuiation of the country is divided in two hostile camps.
On both sides we witness that deep, intense, unforgiving, unre-
lenting hatred which belong to civil wars only ; that hatred which
succeeds fraternal love. ‘The act imputed to the prisoners arises
out of this civil war, and it cannot be the ground of extradition
under the statute. 1st, The act is a political one, inspired by,
and connected with what is called rebellion by those applying for
the extradition of the prisoners; 2nd, The act was one committed
by soldiers of a belligerent in the carrying out of war against the
enemy; and they are answerable to no municipal tribunal of the
enemy: it was a military act, and if irregular, cognizable only by
the military tribunal under martial law; 8rd, It is a national
offence, if any, and not an individual one.
247
Every man putting his foot on English ground, every stranger
owing only a local and temporary aiuegiance, becomes as free
as the British born subject. Our laws guarantee to every in-
dividual the safe hospitality of the soil. It has been Eng-
land’s pride, and England’s boast, that no terror could ever in-
duce her to forego this principle, which is as old as any of
the great liberties of her constitution. Coke says: ‘ Sub-
jects flying from one kingdom to another, and, upon demand
made by them, are not by the laws and liberties v* kingdoms to be
delivered.”? This principle will not be denied, an. it is unneces-
sary to dwell upon it. ‘The only exception to it must be found in
treaties made for the purpose of obtaining the surrencer of crimi-
nals. ‘The demand now made for the extradition of the prisoners,
is founded upon the Ashburton Treaty. The exception made by
the Treaty to the general principle of English law, that no fugitive
shall be surrendered, excludes most strictly every offender whose
crime does not come within its provisions. The treaty comprises
murder, assault with intent to commit murder, piracy, arson, rob-
bery, and forgery. ‘The object of the Treaty is to allow the
extradition of criminals who have violated the laws of nature,—
offenders against the universal code of humanity,—those who have
committed such outrages as attack the very basis of all society,
and whose impunity would become a source of danger to mankind.
It is the common interest of every community to bring such
offenders to justice,—to put them out of the pale of civilization,—
to deter others from committing the same offences, by the certainty
of having no escape and finding no refuge. Our law and the
Treaty does not include, but, on the contrary, positively excludes
any political offence, or any crime arising out of a political struggle,
or a civil war. Both parties to the 'Treaty—Creat Britain and the
United States—have positively limited its dispositions to offences
against the municipal code alone, carefully omitting those which
could have originated or might have been inspired by political
passion, and having for their object a political result. The best
interpretation of the ‘Treaty, and one which the party claiming the
extradition cannot question, is certainly that given by the execu-
‘tive of the United States themselves when this Treaty was made.
We find in President 'Tyler’s message, transmitting this Treaty to
the Senate for consideration, the following declaration: ‘ The
article on the subject in the proposed Treaty, is carefully confined
to such offences as all mankind agree to regard as heinous and
destructive to the security of life and property. In this careful
and specific enumeration of crimes, the object has been to exclude
all political offences or criminal charges arising from wars, or
tntestine commotions.” Professor Woolsey, of Yale College, in the
248
United States, writing on this very subject, says: ‘The case of
political refugees has some points peculiar to itself. A nation, as
we have seen, has a right to harbor such persons, and will do so,
unless weakness or political sympathy lead it to the contrary
course ; but they may not, consistently with the obligations of
friendship between states, be allowed to plot against the person of
the sovereign, or against the institutions of their native country.
Such acts are crimes for the trial or punishment of which the laws
of the land ought to provide ; but do not require that the accused
be remanded for trial to his native country.” It seems most
strange that the Executive of the United States, in 1865, should
claim the extradition of the prisoners under the Treaty, which their
Executive of 1842, who made it, declared to exclude all political
offences or criminal charges arising from wars or intestine com-
motions. In England the doctrine of the inviolability of asylum
for political offenders, has been well and forcibly expressed by the
most distinguished statesmen and writers. Sir Cornewall Lewis,
in his book on foreign jurisdiction, says: “ The crimes to which
the principle of international extradition properly applies, are those
which concern the lives and property of individuals, and which the
entire nation has, therefore, a common interest in repressing. If
all governments were perfectly equitable and dispassionate, the
principle might be safely extended to political offenders ; but in
the prosecution} of political offences, the Government may be con-
sidered as an interested party, and, therefore, another government
is indisposed to give up persons charged by it with crimes of this
complexion. The question seems to involve a contest between the
Government and a portion of its subjects; and the extradition
assumes the character of interference in the internal political affairs
of another state. In cases, therefore, of civil war, of revolution,
or of active political proscription leading to the existence of a large
body of political exiles, a powerful state, which does not fear the
displeasure of the foreign government interested in the question, is
impelled by the dictates of humanity to afford them an asylum, and
to refuse their extradition when demanded.” Lord Palmerston
writes: “ The laws of hospitality, the dictates of humanity, the
general feelings of mankind forbid such surrenders ; and any
independent Government which of its own free will were to make
such a surrender, would be deservedly and universally stigmatized
as degraded and dishonored.” If the interpretation to be given to
the statute be such as to exclude all political offenders, it becomes
necessary to determine what may be called a political offence. The
shortest and most practical definition is certainly the one contained
in President Tyler’s message, 7.e., a criminal charge arising from
war or intestine commotion. We may consider as such any act
NS SE SE
——ee
pai ain RW TSS BE EST a
249
done by any individual connected with either of the parties at
strife in a social outbreak, a revolution, or civil war, or any act
ordered and sanctioned by one of the belligerent parties, even
when it involves the destruction of life and property, Whenever
the fact complained of is manifestly not a free individual act, in-
spired by common passions for self-gratification, but originated
in the assertion of a right, caused by a feeling of devotion of
the individual to the party to which he belongs ;~ or in a compli-
ance with orders of the constituted party authorities acknowledged
by him as his legitimate superiors, executed by him under a
correct or a false sense of duty or patriotism, then it cannot
be a violation of the municipal laws ;—it is a political offence.
These exceptions of political offences or military acts, if they
have any meaning, must certainly be intended to cover the killing
of individuals, the taking or destruction of property in a yp: slitieal
struggle, and all such deeds as, indeperient of such eiement
and unconnected with that object, would otherwise be qualified
as murder, attempt to murder, robbery and arsou. I> the mere
fact of killing, of robbing, or of burning, irrespective f the ¢:-at
objects of those acts, were held sufficient to give rise to extrad ° on,
then Austria might claim, and justly claim, ‘that Kossuth 0: Cari-
baldi should be given up by England. And if the acts now under
consideration were not of a kind to be excepted fron. te operation
of the Treaty, there was no utility nor sense in the exception made
in favor of political offences. It is manifest that the offences con-
templated by the treaty can only be those acknowledged, undisputed
and unquestionable violations of municipal laws, admitted as such
by all mankind ; and not such acts as would be endorsed and ap-
plauded by a large portion of the community where they were
done. Whena deed has been committed by a regularly organized
force of one of two parties engaged in a civil war, or even by an
irregular unorganized band, those who participate in it, do so with
the sole view of assisting their cause. Whilst one party condemns
it as a crime, the other justifies it as a jt. necessary and _praise-
worthy act. Foreign governments, or ‘ign tribunals, cannot
qualify it as a crime without passing judgment in favor of one ot
the parties, and condemning the other. ‘lo allow extradition in such
a case would be the virtual abandonmext of the principle of inviola-
bility of refuge. Mankind agrees. and ought to combine, to force
ordinary criminals out of every community, to deprive them of
every refuge, to bring them to punishment ; but humanity and civili-
zation protest ag gainst the delivery to their enemies, to the authori-
ties against whom they have waged war, of parties who, in a social or
political strife, have destroyed life or property. Every member of
a well organized community is interested in the rendition of a com-
250
mon criminal ; but every man who can appreciate right and liberty
is highly interested in jealously resisting the extension of this prin-
ciple to political offenders. God and conscience may command our
resistance against aggression or illegal arbitrary power; we may be
crushed in the attempt, we may have to flee for refuge out of our
country, and a precedent in such a case as this becomes a rule of
international law, and it would be invoked and applied against us.
Whenever a party or a nation is interested in obtaining the extra-
dition of individuals who have been engaged in civil war, it is easy
to make out a prima facie case of murder, attempt to murder,
robbery, or arson. No man who has actively participated in a
civil war has not killed, or attempted to kill, or destroyed property.
The pretension, therefore, to allow nor but the evidence of the
party claiming the extradition to be adduced, to refuse to the party
implicated the right of showing the political connection of the deed,
is too absurd to be discussed. The simple enunciation of such a
proposition bears its own condemnation. How could a political
refugee ever escape extradition, how could he ever invoke the
sacred right of asylum? It would be a delusion, a mockery. ‘To
carry out the principle, to protect the refugee, it is indispensable
that the character of the individual and the facts should be shown, in
order to establish that, in the act complained of, the principal ele-
ment was political. ‘The moment extradition is demanded, the
accused has a right to set up and show that he is a political
Ps CE WS a ETON E Rea i= ees pee
i offender, and the judge is bound to allow evidence to substantiate ;
lid his allegation, which if proved, negatives all criminality and ousts :
re him of all jurisdiction in the matter. J would contend farther that :
the judge, as representing society, intrusted with the safe-keeping :
of our liberties is bound to ascertain that the party brought before
him is not a political refugee, and the offence not of a political
character ; and in a case of doubt, he is bound to discharge the pri- i
soner, because if he be a political offender, he is innocent and the q
judge has no jurisdiction over him, and he would be illegally using
his authority as an instrument of oppression and vengeance. In
any ordinary case of crime concerning any outrage against the laws
of nature, for the punishment of which the ‘Treaty provides, when it
is not a political act, the right of extradition is universally ad- |
yl mitted. But in this case you have one third of the nation, one
i of the contracting parties to this Treaty, who raise their voice
ik against the application; a large portion of the community on |
aly whose behalf those stipulations were made, and in whose name |
hl the extradition of the prisoners is demanded, have constituted : (
lid themselves a distinct political organization and Government, :
Tf acknowledged as such by Great Britain, and they demand pro-
tection for the prisoners, whom they declare to be innocent of
He hea
iberty
| prin-
id our
ay be
of our
‘ule of
ist us.
extra-
$ easy
urder,
lina
perty.
of the
» party
deed,
such a
litical
ce the
7, To
nsable
ywn, 1D
al ele-
d, the
olitical
antiate
ousts
r that
eeping
before
litical
ituted
ment,
pro-
nt of
eae
Seenaitl austen ota anne
Bite ca
judge. ‘Those two parties, therefore, must necessarily be con-
2
51
all crime and entitled to the consideration and respect of the
world for the very deed for which they stand now accused.
They are engaged in a murderous conflict ; every individual in that
unfortunate community is engaged in it as one of either party, and ee
stands in deadly enmity to every man of the opposite party, and in a
this strife the injuries done by an individual of one party to their
enemies must be presumed and held to be an injury of the party, IH
unless the contrary appears. Vattel, p. 424—“* A civil war breaks | i
the bands of society and government, or at least suspends their if
force and effect ; it produces i in the nation two independent parties,
who consider each other as enemies, and acknowledge no common
rate bodies, two distinct societies. Though one of the parties may
have been to blame in breaking the unity of the State and resisting
the lawful authority, they are not the less divided in fact. Be-
sides, who shall judge them, who shall pronounce on which side the
right or the wrong? On earth they have no common superior ;
they stand, therefore, in precisely the same predicament as two
nations who engage in a contest, and, being unable to come to an
agreement, have recourse to arms.”’ ‘The prisoners are Southerners,
Confederates, enemies of the North; they were actively engaged
in Chicago about the great object for which their country is suffer- I:
ing, and for which they so heroically contend. They were conspir-
ing against their enemies in their midst, on behalf of their country,
at the risk of their lives, After attempting one plan, they decided,
under direct and positive orders from their Government, to make es
an attack upon some open town in the enemy’s country, to burn Hae
and plunder it. Their leader, Bennett H. Young, had his commis- Hh
sion ; they were soldiers ; they obeyed : the work offered was hostility
to their enemies ; they undertook it with pleasure. ‘The sole end
and motive of their action, was their country’s good—the ruin and
destruction of their enemies. Can it be doubted for a moment that h
they were actuated by any other fecling but that which animates
the South against the North, that it was the spirit of patriotism or
rebellion, as you may choose to call it, which prompted them and it
carried them on to the execution of this plan? No; the evidence | r
leaves no doubt on this subject. Itis unquestionably a part of the i
great contest carried on between the North and the South, a part,
an incident in this bloody drama, and tending to the same result. obit
It is unmistakably a political act. The circumstances, the nature ; :
of the deed, the character of the individuals, their organization, He
their admirable plan and its very result, prove it to be a well devised ‘oa
and well executed political movement. ‘lhe movement was ordered, i
}
\
|
}
'
sidered as thenceforward constituting, at Jeast for a time, two sepa- | | i
}
|
the money was furnished by the well known agents of the Confede-
252
rate Government. The political character of the deed, or its
motive, such as established in evidence, disprove all criminality.
It is an unquestionable rule of international law that all the citizens
of a belligerent State are enemies of all the citizens of the other;
and it is also a rule of law, that civil war created, during its exist-
ence, that same division which exists between two separate nations.
Acts of hostility between the belligerents, acts of aggression against
parties in civil war, are not crimes. ‘They are deficient in that
necessary element of all crime, the intent to injure any particular
individual. ‘There was none of that animus which was necessary
to the constitution of a criminal offence ; because the action in
such cases was not directed against the individual, but against the
enemy. In the present case, it is evident that it was not the pro-
perty of Mr. Breck, or Mr. Sowles, or Mr. Bishop the prisoners
intended to destroy and plunder, but the property of the enemy, of
the Yankees. There is no principle more undoubted than that
the intent alone can create crime; and as authorities from the
United States must be more readily accepted to establish any point
of law, I would refer to Bishop, 1, 227: ‘“ ‘There is only one
criterion by which the guilt of men is to be tested. It is whether
the mind is criminal. Criminal laws relate only to crime. And
neither in philosophical speculation, por in religious or moral senti-
ment, would any people in any age allow that a man should be
deemed guilty unless his mind were so. It is, therefore, a prin-
ciple of our legal system, as probably of every other, that the
essence of an offence is the wrongful intent, without which it cannot
exist. We find this doctrine laid down not only in the adjudged
cases, but in various ancient maxims, such as ‘ actus non facit reum,
nist mens sit rea;’ the act itself does not make a man guilty,
unless his intention were so. It cannot be robbery, because open
war exists between the two parties, and the law of nations does not
regard an act of aggression by the subjects of the revolted country
against the persons or property of the parent country as murder or
robbery ; it is a political or military act.” 1 Phillimore, p. 187:
*¢ A declaration of war, which enjoins the subjects at large to attack
the enemy’s subjects, implies a general order. If the unauthorized
subject carry on war or make captures it may be an offence against
the sovereignty of his own nation, but it is not a violation of inter-
national law.’’ Halleck, a major-general in the United States, p.
446: ‘Tt has already been stated that war, when duly declared, or
officially recognized, makes legal enemies of all the individual mem-
bers of the hostile States, that it also extends to property, and gives
to one belligerent the right to deprive the other of every thing
which might add to his strength and enable him to carry on hostili-
ties.” Bynkershoek, p. 4: ‘ A nation which has injured another is
or its
inality.
citizens
other ;
3 exist-
nations.
against
in that
rticular
cessary
‘tion in
inst the
he pro-
risoners
emy, of
in that
om the
Ly point
nly one
vhether
And
al senti-
uld be
a prin-
hat the
cannot
judged
treum,
guilty,
e open
oes not
ountry
rder or
alors
attack
vorized
gainst
inter-
tes, p.
ed, or
mem-
l gives
thing
iostili-
her is
i]
H
yy
)
258
considered, with every thing that belongs to it, as being confiscated
to the nation that has received the injury. ‘To carry that confisca-
tion into effect may certainly be the object of the war, if the injured
nation thinks proper ; nor is the war to cease as soon as she has
received a repars.tion or equivalent to the injury suffered. The
whole commonweait. and all the persons, as well as the things
contained within it belongs to the sovereign with whom they are
at war, and in the same manner as we may seize upon the person
and upon all the property of our debtor, so a sovereign in war may
seize the whole of the subjects and dominions of his enemy.” Sup-
posing even the parties might have been in error as to their right
to act as they did; supposing they had acted without proper
authority, or beyond the ordinary rules of war; that they had been
deceived as to their right and duty of obeying the orders of their
Government, still if they supposed they were acting upon proper
grounds and with sufficient authority, they would, even according
to American criminal law, be held innocent; there would be no
crime. 1 Bishop, § 242, lays down the law in these terms: ‘The
legal rule is clearly enunciated by Baron Parke. The guilt of the
accused must depend on the circumstances as they appear to him.
Here the rule is, that if one has reasonable cause to believe the
existence of the facts which excuse the homicide, or, to express the
idea accurately, 1f without his fault or carelessness he does believe
in them, he is legally innocent, though it turns out that he was mis-
taken.” Is there to be discovered in this case any of that animus
furandi, which was indispensable for the constitution of criminal
offence? We see nothing in the evidence to indicate it. The
motive, the impelling power, was patriotism. In no other country,
perhaps, but in the Southern Confederacy, would twenty young
men be found who would be prepared to risk their lives, to offer
them to a certain almost ignominious death in taking possession of
a town of four thousand inhabitants. All idea of personal profit,
private plunder is excluded by the facts. Moreover, the offence
must be one that would be so qualified by the tribunals of the country
demanding the extradition ; it must be a crime according to their
legal definition, and extradition can be demanded only by the
party to the Treaty. ‘The question will naturally arise, does the
party to the Treaty, the association of States, still exist ? Is it not
broken de facto and de jure in the eyes of England, who recognises
them as two distinct belligerent nations? But admitting that the
Treaty remains unimpaired, it will not be denied that the offence
must be one which all the United States—South Carolina as well as
Vermont—should acknowledge as such, and would so be considered
by all the tribunals of all and each State.
The crime must be one universally admitted as such by all the
254
United States parties to the Treaty, not solely by the definition
of one or ten States. Would the parties be tried or held as felons
in their States, in Richmond, in South Carolina, Georgia, Tennessee,
or in any of the Confederate States, who were parties to this Treaty ?
Can it be presumed that they demand the extradition of these men?
Assuredly not. ‘The contrary is the case. Can, then, our Govern-
ment and our Courts, in just*ce, as a fair interpretation of this com-
pact, yield to the exasperated feelings of a section, however large,
however powerful, of the contracting parties, who choose to stamp
an act as criminal for the sole purpose of using the Treaty as an
engine of oppression against the other section. Every bad case
founded on wrong principles and bad law is prolific of dilemmas.
The United States contend, and this Court has decided, that the
Treaty in question not only covers offences against the United States
eo nomine, but offences against each State. We are bound to
acquiesce in that decision, but it inevitably leads to one of two con-
clusions—first, that the offences so enumerated are to be those crimes
as defined by common law; or secondly, those defined by the Statutes
of each separate State. ‘That statutory crimes are nc intended to
be included, the Executive of the different States have repeatedly
declared. It is universally held, that by the Const:tution, statutory
offences are not to be included for extradition between themselves.
No statute of Vermont, therefore, concerning robbery or murder,
affects this case. Vermont might make stealing of a horse murder.
In the Souchern States stealing of a negro is capital robbery.
Duelling is allowed in some States; in others it is made murder by
statute. ‘The slave trade is defined as piracy by some laws. The
offences enumerated in the Treaty, for which extradition alone can
be granted, are arson, robbery, forgery, piracy, murder, as defined
by common law in all and every State. ‘The question is, therefore,
repeated, whether by the common law of Florida, Carolina, and all
the Confederate States controlled by the state of war now existing,
the offences against the prisoners would be admitted as such.
The political character of the deed would be of itself sufficient to
dispose of the present application, and the case of the prisoners might
rest surely on this ground alone ; but independently of this reason the
military character of the prisoners and of the deed, would also be a
complete answer to the demand for their extradition. It is estab-
lished beyond a doubt, that the prisoners were soldiers regularly
enlisted and in the active service of the Confederate States at war
with the United States. Great Britain and all the civilized world
acknowledge them as belligerents. ‘The moment it is proved that
these men were regular soldiers of the Southern Confederacy, duly
commissioned, organized and acting with the sanction of their Goy-
ernment, there ends all question as to the application of the statute.
0
inition
felons
nr:
reaty ?
omen ?
rovern-
is com-
‘large,
» stamp
yas an
id case
emmas.
hat the
l States
und to
wo con-
> crimes
Statutes
nded to
eatedly
tatutory
nselves.
murder,
murder.
obbery.
rder by
5. The
one can
defined
refore,
and all
xisting,
ient to
3 might
son the
so be a
5 estab-
cularly
at war
l world
d that
, duly
ir Goy-
statute.
——eEeEEE—————
255
There can be no possible violation of the municipal laws of the
enemy by soldiers of the belligerent. They owe no obedience
to the enemy’s laws, because they owe the State none. They
are not bound to respect the lives of thei enemies, the property of
the enemy ; they are engaged to wage war, to kill, and to destroy
property. Rules have been established to regulate hostilities in the
conduct of the war, but these rules belong not to the municipal
code ; their infractions are left and appertain exclusively to the
military authorities and to the military code. An offence of this
kind cannot be construed into a crime defined and regulated by the
statute of Vermont. The law under which they come is found in
that chapter of international law devoted to war. 2 Burlamaqui,
p- 192: ‘* Most nations have fixed no bounds to the rights which the
laws of nature give us to act against an enemy ; and the truth is,
it is very difficult to determine precisely how far it is proper to
extend acts of hostility, even in the most legitimate wars, in defence
of our persons, or for the reparation of damages. or for obtaining
caution for the future, especially as those who. engage in war, give
each other, by a kind of tacit agreement, an entire liberty to mode-
rate or augment the violence of arms, and to exercise all acts of
hostility, as each shall think proper. And here it is to be observed,
that though generals usually punish their soldiers, who have carried
acts of hostilty beyond the orders prescribed; yet this is not
because they suppose the enemy is injured, but because it is neces-
sary the general’s orders should be obeyed, and that military disci-
pline should be strictly observed. It is also in consequence of these
principles, that those who, in a just and solemn war, have pushed
slaughter and plunder beyond what the law of nature permits, are
not generally looked upon as murderers or robbers, nor punished as
such. ‘The custom of nations is to leave this point to the conscience
of the persons engaged in a war rather than involve themselves in
troublesome broils, by taking upon them to condemn either party.
It may be even said, that this custom of nations is founded om the
principles of the law of nature. Let us suppose that in the inde-
pendence of the state of nature, thirty heads of families, inhabitants
of the same country, should have entered into a league to attack or
repulse « body composed of other heads of families. I say, that
neither during that war, nor after it is finished, those of the same
country, or elsewhere, who had not joined the league on either side,
ought or could punish, as murderers or robbers, any of the two
parties who should happen to fall into their hands. ‘They could not
do it during the war, for that would be espousing the quarrel of one
of the parties; and since they continued neuter in the beginning
they had clearly renounced the right of interfering with what should
pass in the war. Much less could they intermeddle after the war
\Y
256
is over, because, as it could not be ended without some accommo-
dation or treaty of peace, the parties concerned were reciprocally
discharged from all the evils they had done to each other. The
good of society also requires that we should follow these maxims.
For if those who continued neuter had still been authorized to take
cognizance of the acts of hostility, exercised in a foreign war, and
consequently to punish such as they believed to have committed
any injustice, and to take up arms on that account; instead of one
war several might have arisen, and proved a source of broils and
troubles. ‘The more wars became frequent, the more necessary it
was for the tranquillity of mankind not to espouse rashly other peo-
ple’s quarrels. ‘Ihe establishment of civil societies only rendered
the practice of those rules more necessary ; because acts of hostility
then became, if not more frequent, at least more extensive, and
attended with a greater number of evils. Lastly, it is to be
observed, that all acts of hostility which can be lawfully committed
against an enemy, may be exercised either in his territories, or in
ours ; in places subject to no jurisdiction, or at sea. Vattel, p. 293:
‘¢ The sovereign is the real author of war, which is carried on in
his name and by his order. ‘The troops, officers, soldiers, and, in
general, all those by whose agency the sovereign makes war, are
only instruments in his hands. ‘They execute his will and not their
wn.” If the prisoners as soldiers had committed acts of violence
unauthorised by their superiors, they were responsible to them; if
the acts were beyond the ordinary outrages sanctioned by the
usages of war, they might be made accountable to the enemy, if
captured and tried by military court-martial! and treated accord-
ingly, but the offence could never be converted into one against the
municipal laws. When Beal was taken prisoner in the United
States, although a companion, a soldier of Burley, who has been
extradited for robbery, they tried him by court-martial, and they
sentenced and executed him as a soldier, for an offence against the
laws of war. ‘The printed directions and 2gulations for the United
States’ armies contain special provisions for cases of this kind, and
prove conclusively that in the opinion of the United States authori-
ties themselves, no other law is applicable than the military code.
Such offences fall exclusively within military jurisdiction and
military law, who for certain violations of the rules of war can de-
prive soldiers of the immunity attaching to prisoners of war.
No. 84 of these regulations states: ‘* Armed prowlers, by what-
ever names they may be called, or persons of the enemy’s territory
who steal within the lines of the hostile army, for the purpose of
robbing, killing, or of destroying bridges, roads, or canals, or of
robbing or destroying the mail, or of cutting the telegraph wires,
are not entitled to the privileges of the prisoners of war.” Can
rare wars a
mmo-
cally
The
xims.
take
, and
nitted
f one
3 and
ary it
r peo-
tered
stility
, and
to be
nitted
, or in
, 298;
on in
nd, in
wr, are
t their
olence
pm; if
Dy the
my, if
ccord-
hst the
nited
been
they
st the
nited
l, and
thori-
code.
» and
n de-
what-
ritory
bse of
or of
vires,
Can
257
any example be found in the history of any war of a soldier taken
in the open fact of a murder or robbery of the enemy, and left or
delivered over to the enemy for trial before the civil courts of the
country against which he was engaged in war? When Wellington
was in Spain, in the country of an ally, he did not acknowledge
even then the civil jurisdiction over his soldiers, committing depre-
dations expressly prohibited by his orders; he did not send them
to be tried by the Spanish courts of justice, but he ordered them
to be tried by court-martial, and they were sentenced to be hung
by their own military courts. In the present case the acts were
done under a special commission. Whenever a soldier has a com-
mission, he becomes an instrument of war,—the presumed authori-
zed agent and representative of the belligerent power for every act
he may do, for every injury he can inflict. His conduct is fully
covered by his commission. Chancellor Kent, a most eminent Ameri-
can judge, 1st. vol. of his Commentaries, writing on international law,
p. 94, 96, says: ‘* Although a state of war puts all the subjects of the
one nation in a state of hostility with those of the other; yet, by
the customary law of Europe, every individual is not allowed to fall
upon the enemy. If subjects confine themselves to simple defence,
they are to be considered as acting under the presumed order of
the state, and are entitled to be treated by the adversary as lawful
enemies; and the captures which they make in such a case, are
allowed to be lawful prize. But they cannot engage in offensive
hostilities without the express permission of their sovereign ; and if
they have not a regular commission, as evidence of that consent,
they run the hazard of being treated by the enemy as lawless
banditti, not entitled to the protection of the mitigated rules of
modern warfare. If they depredate upon the enemy without a
commission, they act upon their peril, and are liable to be punished
by their own svvereign ; but the enemy are not warranted to con-
sider them as criminals, and as respects the enemy, they violate no
rights by capture. Such hostilities, without a commission are,
however, contrary to usage and exceedingly irregular and danger-
ous ; and they would probably expose the party to the unchecked
severity of the enemy, but they are not acts of piracy.”’ 1 Phili-
more, 893: ‘So long as these vessels (private ships) sail under
& national commission, and within the terms of that commission, it
is quite clear that they are not and never have been considered as
pirates by international law. And even if they exceed the limits
of their commission, unwarrantable acts of violence, if no piratical
intention can be proved against them, they are responsible to, and
punishable by, the state alone from which their commission has
issued.”? Wheaton, 247: “ ‘The officers and crew of an armed
vessel, commissioned against one nation and depredating upon
R
958
another, are not liable to be treated as pirates in thus exceeding
their authority. The state by whom the commission is granted
being responsible to other nations for what is done by its commis-
sioned cruisers, has the exclusive jurisdiction to try and punish all
offences committed under color of its authority.”’ The same
author in a note, p. 248: ‘* But in the case of one having a com-
mission from a party to a recognized civil war, no irregularity as to
acts done jure belt, will make him a pirate. He stands in the
same position as if he held a commission from an established govern-
ment, so far at least as regards all the world, except the other
party to the contest. His acts may be unlawful when measured
by the law of nations or by treaty stipulations. The individuals
concerned in them may be treated as trespassers ; and the nation
to which they belong may be hela responsible by the United States ;
but the parties concerned are not pirates.” The same author, p.
626: “ The effect of a state of war, lawfully declared to exist, 1s
to place all the subjects of each belligerent power in a state of
mutual hostility. The usage of nations has modified this maxim,
by legalizing such acts of hostility only as are committed by those
who are authorized by the express or implied command of the state.
Such are regularly commissioned naval and military forces.”? The
same doctrine is laid down in Halleck, a general officer in the
United States’ service. In his book on International Law, p. 306
and 386, he says: ‘‘ That the sovereign alone is to be held guilty
for the acts of unlawful war: that he alone is bound to repair the
injuries, and not those who act under his authority.” No principle
seems to be more clearly admitted by all the best American au-
thorities, and all writers on international law, that the soldier’s
commission is a complete justification and protection for all his acts ;
that he cannot be made responsible, except to his state alone, for
any unwarrantable act of violence ; that no excess of violence car:
give to the municipal tribunals any jurisdiction over him. Ne one
has the right, because none has the means, to judge him, to convict
him of the crime of absence of authority on the part of his govern-
ment. In this case the acts were done in direct obedience to the
authority of superiors, who, by their commission, delegated to their
officer the right of waging war, destroying the enemy, and devas-
tating the country. The leader of the party had a special com-
mission for this particular object. ‘To him was entrusted the
direction of the whole plan. He stood, with respect to its execu-
tion, in the position of a general invested with all the authority of
the state with whom alone rested the responsibility of the outrage.
The mode of fulfilling such orders was a matter for the conscience
only of the officer and for the authorities ordering them. The
Americans complained bitterly ; and we find recorded in every one
ling
nted.
mis-
h all
same :
com-
aS to i
. the
yern-
other
ured
uals
ation
ates ;
D YP:
st, 1s
te ot
AXINA,
those
state.
The
n the
. 306
uilty
ir the
ciple
m au-
ier’s
acts ;
e, for
e Can
o one
bnvict
vern-
o the
their
levas-
com-
h the
xecu-
ity of
rage.
ience
The
iy one
of their writings, when occasion is offered for comment, a most
strong condemnation of acts which they qualify as outrages of the
worst character, committed hy Admiral Cochrane, in the war of
1812. Small, open and defenceless towns were burned and sacked :
unarmed and unoftending people were killed. The American Go-
vernment did not then qualify such acts as murder and arson.
They applied to the British authorities to ascertain if these
acts had been authorized. The answer given was, that the in-
jury had been authorized, and ordered as measures of retaliation.
Will it he pretended that if the Admiral or any one of’ his
command had afterwards, or during that war, been found in
Spain or Portugal, that he could have been given up on a
demand for extradition made by the United States? If the
British Government could order these destructive acts, from
motives of policy, the Southern States may have the same and
better causes of retaliation for outrages committed by the Federal
troops in the South. But whether the raid in St. Albans was
ordered or not, whether for one purpose or another, it was essentially
a military act.
Monpbay, March 2nd.
[ have shown that by the interpretation universally given, and
by positive declarations emanating from the highest authorities of
both contracting parties to the treaty, that political offences, or any
crime arising fra om wars or intestine ‘commotions, cannot come within:
the treaty, and I have established that the acts ‘imputed to the pri-
goners were acts of that class; that moreover, it was an offence
committed by soldiers, therefore, a military not a civil or municipal
offence; that the commission of the soldier was alone required to
establish his character, and was complete justification to protect him
from extradition. Before closing my remarks on this point, I will
refer to two important documents which have come to light since
the last sitting of the Court. ‘The first is the despatch of Lord
John Russell, in answer to Mr. Adams’ complaint of the proceed-
ings of the Court of Bermuda, who discharged parties accused ot
piracy by the United States Government for haying taken posses-
sion of the United States’ vessel Roanoke, after going on board at
Havana as passengers, and destroying her. Lord John Russel!
says: ‘The other complaint is, that certain passengers proceeding
from Havana in the United States vessel Roanoke, when five hours
from Havana on their voyage, rose on the captain, ‘made themselves
masters of the vessel, destroyed her, and were afterwards permitted
to land on the island of Bermuda. The answer to the second
complaint is: That the person arrested for a supposed piratical
act produced a commission, authorizing that act as an operation of
260
war from the Government of the so-called Confederate States, which
are acknowledged by her Majesty’s Government to possess all bel-
ligerent rights.”’ ‘The statement made in this despatch affords the
ynost conclusive authority in favor of the prisoners, to establish the
principle that a commission from a belligerent is all that can be
required to justify any act of hostility against an enemy. ‘The act
alluded to in this despatch, certainly, affords good subject for criti-
cism by the rules of war. Secretly and by disguise entering a ship
as passengers, and then rising on the crew, taking possession of her
and destroying her, might be questioned as a legitimate or regular
act of war, sanctioned by modern usage, but this question could not
be raised after the production of thc commission; the only justifi-
cation required was the commission. ‘I'he other and a most impor-
tant document is the report of the trial of the unfortunate man
Beall, who was acting under the orders of Burley, who was extra-
dited for robbery by the judiciary of Upper Canada, although the
offence was identically the same as that of Beall, his subordinate.
\ Beall was brought before a court-martial and tried there, not for
robbery but for a political and military offence, the violation of the
rules of war. The charges are specified as follows :
is, ‘Specification 1.—In this, that John Y. Beall, a citizen of the
bik) insurgent State of Virginia, did on or about the 19th day of Sep-
if tember, 1864, at or near Kelly’s Island, in the State of Ohio,
pit without lawful authority, and by force of arms, seize and capture
the steamboat Philo Parsons.
ma ey “ Specification 2.—In this, that John Y. Beall, a citizen of the
ee insurgent State of Virginia, did on or about the 19th day of Sep-
tember, 1864, at or near middle Bass Island, ia the State of Ohio,
without lawful authority, and by force of arms, seize, capture and
Oey sink the steamboat Island Queen.” ]
Ba ihas Upon this accusation, the United States authorities, through the ;
CME Judge Advocate, declared that this very offence, for which they
Be hs obtained the extradition of Burley, was a political and a military
offence. ‘They positively declared that the offence is not a civil or
municipal one, that it cannot be the subject matter of trial by ordi-
nary Courts of Justice. Here are his very words :
‘“‘T was willing to admit that Beall was a rebel officer, and that
‘‘ all he did was authorized by Mr. Davis; because in my view of
‘ the case, all that was done by the accused, being in violation of
i ‘* the laws of war, no commission, command or manifesto could jus-
HE ‘* tify his acts.
ae ; ‘‘ [t is true, that if these enormities had been committed in time
aa ‘¢ of peace, or by ordinary citizens, rogues and desparadoes, they
tt ‘ would have been mere municipal or civil offences, and the perpe-
‘ trators would be amenable to the civil Courts and entitled to the
a MY UP a act SR
a
x
©
hich
bel-
the
the
1 be
» act
sriti-
ship
f her
rular
1 not
stifi-
1por-
man
xtra-
h the
nate.
t for
f the
f the
Sep-
Ohio,
pture
f the
Sep-
Ohio,
p and
h the
they
litary
vil or
ordi-
that
w of
on of
1 jus-
time
they
erpe-
o the
261
“trial by jury. But the aceused is not prosecuted for a civil
‘* offence. He is by the theory of this case a military offender, a
‘* violator of the laws of war. He refers to a quotation of I[olt’s
* Digest, p. 79, to show that murder, which is a civil offenee under
‘* ordinary circumstances, may and does, in time of war, when com-
‘* mitted for disloyal and treasonable purposes, become a military
‘* offence, and may then be tried by a military Court, without the in-
‘* terposition of a jury. In time of war, the oftender being a rebel
‘ officer in disguise, the question of intent, the quo animo, is very
* easily determined. In this case it is very clear, that personal
‘“advantaye was not the motive that led to the seizure of the
“steamboats, or the attempt on the railroad. ‘To destroy the
commerce of the lakes was one of the objects avowed by the raid-
‘ing party on Lake Erie ; to inflict great injury upon great num-
‘* bers of their Yankee enemies, and not the erazy expectation that
‘a gang of five rebels could overcome and plunder a thousani|
‘‘ passengers, was the purpose of the railroad attack. he acts
‘charged and specified, being military offences are triable by a
‘military Court, and the accused has no constitutional right to a
** jury trial,”
This trial and the sentence against the unfortunate accused
which was carried into effect, is the denial by the American autho-
rities themselves of their right to demand and to obtain the extra-
dition ot P urley, or of the prisoners in this case. ‘They admit that
it was a political offence, that it was not inspired by the desire of
private plunder, that it was solely and exclusively a deviation from
the usages of war, an offence to be dealt with by the military tribu-
nals. If such was the case for Burley and Beall, ean it be doubted
that the same principles should apply to the prisoners? I shall
again on this point refer to the regulations of the United States’
armies—sanctioned and ordered by | the Government :
Page 12, No. 40: * There exists no law or body of authoritative
‘¢ rules of action between hostile armies, except that branch of the
‘* law of nature and nations, which is called the law and usages of
‘¢ war on land.’? No. 41: ‘ All municipal law of the ground on
‘¢ which the armies stand, or of the countries to which they belong,
‘¢ is silent and of no effect between armies in the fielit.”’
Offenders against these usages of war are tried by military courts
of the enemy ; they may be sentenced, they may be hung or shot,
and justly too, according to the laws of war, and nevertheless they
may be morally innocent. ‘The military spy who is found in the
lines; the scouts who are ordered to go in disguise through the lines
of the enemy to observe its movements or to destroy a telegraph ;
the messenger who, for the safety of an army, in obedience to the
orders of his officers goes in disguise through the enemy’s lines, te
“6
ay
962
convey @ message to another division, if found within his lines, the
enemy is justifiable in trying them and executing the... the
victims are devoted, sometimes the most noble soldiers, ‘7 -» sxe
in conscience, in the eyes of the world, and before God, trom
guilt of any kind. ‘The case of the unfortunate Major André is a
striking illustration of this.
It is the same principle in this case. It was, it might have been
thought by the Confederate Government of great politic: il moment,
and dictated by the best reasons, to order this raid in St. Albans.
Being unable to effect it by an army sufficiently strong to run over
the whole territory as Morgan attempted, they call upon soldiers to
do it by artifice, by reaching that spot in disguise and then to levy
the contribution, or plunder “and destroy. They did so boldly and
openly in broad day light. They were liable, if taken, to be shot
on the spot; little chance could they have of escape. If they had
heen taken in the execution of these orders by the enemy, and
tried and condemned by a military Court, would they not have
heen innocent—could they not feel in their conscience that they
were not criminals ?
Tt has been said, and it will be probably repeated here, that this
is not a proceeding sanctioned by the law of modern warfare.
Admitting it was a violation of the usages of war, is there accord-
ing to the laws of nations, a tribunal in any country entrusted with
the power of judging nations and condemning their policy? If
they deem it expedient to deviate from the rules prescribed by
justice and humanity, they are not accountable to other nations
their equals ; for independent nations acknowledge no superior on
earth. This is an elementary principle of the law of nations. The
only question therefore can be whether it is an hostile act com-
mitted by an enemy against an enemy, or by the soldiers of one bel-
ligerent against the enemy. ‘Taking it to be an unjustifiable viola-
tion of the most unquestionable rules of warfare, stili it would
be an act of war; irregular, if you choose, but nevertheless an act
of war. It might be a violation of the rules of war, but it
could not be an infraction of the statute of Vermont. It might
be censurable, politically immoral, but not criminal in the
civil or municipal sense of the word. It never could be defined
murder or robbery, contemplated by the treaty. I contend how-
ever that the conduct of the prisoners is perfectly justifiable if
tested by the principles of common and ordinary warfare.
Supposing these twenty men to have been detached from the
lines, for the special purpose of taking and plundering any of the
small towns on the Potomac, to levy contribution by obtaining deli-
very of all the funds in the possession of the banks, or to retaliate
by plundering and burning it, and let us suppose they had suc-
ceeded in doing so. What objection could be made ? no iniquity,
the
the
mA
from
is a
been
1ent,
ans.
over
rs to
levy
and
shot
had
and
have
they
t this
‘fare.
cord-
d by
ations
or on
The
com-
e bel-
Vviola-
ould
n act
ut it
night
the
fined
how-
ble if
m the
of the
deli-
hliate
suc-
uty,
—E
ABTS)
ao violation of the laws of war would be discovered. Supposing
these twenty men would have been detached from Morgan's com-
mand, when he effected his raid in Kentucky, and going at a great
distance from the main body, would have attempted the same in
Pennsylvania, would not such a feat have been considered as bold
and daring, would a newspaper have dreamt of making an outery
in support of the principles of modern civilized warfare % Would
the parties have been styled by them murderers and robbers %
Supposing in such an instance they would have been captured with
their plunder, would they have been made prisoners of war or been
dealt with as criminals % Remove the scene of action, extend the
distance, multiply the difficulties ; let these men go in disyuise
through the whole breadth of the cnemy’s territory, back to the
Canadian frontier, to St. Albans; let them be bold enough to
attempt such a project there with twenty men and carry it out,
will the distance or the greater difficultics alter the nature of the
case Will the first be according to the rules of war, and the last
a violation of them’ Will the parties engayed in the first expedi
tions be brave soldicrs, heroes, and those concerned in the last,
murderers and robbers ¢ On what ground’ Where is the differ-
ence in the supposed occurrences and the one complained of 7
What constitutes the criminality which would so alter and pervert
the one so as to change a laudable act into a most atrocious and
revolting crime‘ Is it because it was so far from the focus of
the war. Docs any rule exist in war whereby certain portions
of the enemy’s territory are exempt from hostilities’ We have
heard of modern usages of war, but this is certainly the most
recent enactment ; and probably the learned Counsel for the appli-
cants will furnish us with the text laid by some writers on the
subject.
If such a rule exists, the morality of a deed would depend upon
its geographical situation. If a thing is done on the Rappahan-
nock, it is right and legitimate ; but as you go northwards, the
morality may ‘decrease ; it altogether changes ‘and is altered, so,
that when you reach near the forty- -fifth degree of latitude north,
then it is converted into an absolute crime. It must be admitted
that the ignorance of this rule of war might be invoked, at least, as
a good excuse to the parties infringing it, to free themselves from
all criminal intention in the matter.
It will be said that they violated neutral territory. Admitting
that they did, who has a right to allege it or to complain? Will
that change the nature, the character of the deed? It may be a
separate, independent offence ; but the violation of neutrality laws
cannot certainly convert an act otherwise non-criminal into a
crime. Ifthe parties went there as soldicrs or as engaged in this
264
civil war, will the fact of committing a trespass on neutral ground
change their intent, deprive them of their character of soldiers or
partizans and transform them into common criminals? It would be
a new principle of modern warfare that a trespass on neutral terri-
tory would convert an act of war into a crime. The judge is not
called upon to decide a breach of the neutrality laws, but upon
the criminality, the criminal intent of the prisoners. He is called
to satisfy himself that an offence against the municipal laws: of
the United States has been perpetrated by them. If they had
violated the territory of Great Britain, they were amenable to the
tribunals of the country, and responsible to them alone, and not to
the United States. We can, however, dispute the violation of the
neutrality. ‘Two facts only have been established from which
oy such presumption might arise,—Young’s interview with Mr.
Clay at St. Catherines, and the travelling ‘of five of the soldiers
engaged in this business through Canada. Besides this, there is
nothing in the evidence to constitute a violation of the neutrality.
[Tow will the transmission of orders by a Government agent to one
of the officers of that Government, supposing it were to direct his
movements in a hostile expedition, of itself constitute a violation of
neutrality? If such a principle was affirmed, then England
could not act through her ambassadors or her navy officers, when
in neutral ground or neutral ports, to convey orders or instructions
to those directly engaged in hostilities. ‘The correspondence, the
transmission of orders, would be declared a breach of neutrality.
The quiet passage of unarmed soldiers never did, according to the. Q
laws of nations, constitute, even with the intent and object to reach
the enemy’s territory, a violation of neutrality. On the contrary,
the peaceful transit of troops is recognized by the law of nations,
Be ait and both belligerents can exercise it. In this war the United
iy fh (| States have exereised such right in Canada. It is proved, on
aii: the other hand, that the whole plan was arranged in hostile terri-
tory. ‘The enlistment and the preparation of the scheme was set-
tled upon in Chicago. ‘Tlie act, however, as to its criminality ‘ith
respect to the subject-matter of the treaty, must necessarily be
examined, independent of any foreign or collateral circumstances,
and, considered in this light, no criminality whatever can attach to
it. It is essentially a hostile act, an act of war.
Burlamaqui defines war to be the state of those who try to deter-
mine their differences by the ways of force. Wheaton, p. 586—
‘The rights of war in respect to the enemy are to be measured by
the objects of the war. Strictly speaking, it is the right of ae:
every means necessary to accomplish the end.” 2 Kluber,
—‘* Les droits de la bonne cause (which must be held, by the n neu-
trals, that of each of the belligerents) envers la partie qui fait une
<P ihe Recah i DONTE REN RONAN ep anew
2 a ea
a RE
265
guerre injuste sont illimités. Il n’y & done aucun moyen, quelquc
violent quwil soit que l’ennemi ne puisse employer.” Bynkershoek,
p- 2 and 4, goes even further, and lays down the rule in absolute
terms, that the enemy can use every means poss’»lo against his
enemy, admitting that there is no limit to the right of injuring the
enemy. Vattel, p. 346-369; 1 Hautefeuille des Neutres, p.
182, 133,150; 2 Kluber, p. 21, 53, 56. All the writers on the
subject admit that such is the original and the actual absolute
right. Civilization and the well-understood interests of all com-
munities have prescribed moderation in the exercise of this right,
and established exceptions to this absolute principle of the law of
war, by sanctioning certain rules which have generally been adopted
hy common consent and common practice, without however abrogat-
ing the primitive and original right, which still remains in tiie eminent
domain of every nation to be exercised, when, in the judgment and
conscience of the constituted authorities, its application may be
deemed necessary. The right to do your enemy all the injury
possible still subsists as the ‘fundamental principle of war.“ Tf”
says Paley, “ the cause and end of war be justifiable, all the means
that appear necessary to the end are justifiable also. This is the
principle which defends those extremities to which the violence of
war usually proceeds; for since the war is a contest by force
between parties who acknowledge no common superior, and, since
it includes not in its idea the supposition of any convention which
should place limits to the operations of force, it has naturally no
boundary but that in which force terminates,—the destruction of
the life against which the force is directed.” Every writer upon
war lays down the same principle as the illustrious English philoso-
pher and divine whom I have just quoted. War is licensed murder,
pillage, plunder, devastation, and destruction. sangeet may
shudder, philosophy may revolt, and seek to soften and relax the
rigor of this fundemental axiom of the laws of nations. Beyond
and outside of this principle of unmitigated and unrestrained hos-
tility, there are no laws of war, except those implanted in the
breasts of the beiligerents by the Creator. All the amceliorations
of this great principle should be styled rules and usages of war,
superinduced by the teachings of wise and humane authors, and
encouraged by the practice of the greatest and best generals. There
is no rule of war which makes exemption of private property from
capture, plunder, or destruction. Soldiers are considered by all nations
as: mere instruments of war, passive mechanical agents of a superior
moving power, which alone is responsible for their actions. Every
act.of hostility committed by them must be considered as an act of
War unless disapproved of and condemned by the nation to whom
they belong. ‘The parties to this application have acknowledged the
266
prisoners us their enemies, aud es soldiers acting on behalf of the
Confederate Statcs. The partics in this case themselves have
qualified this very act of the prisoners as an act of war. The
banks did so by a public notice given to the world, and which is
proved in this case, offering a reward of 810 000 for the appre-
hensiun of the armed raiders who had plundered their insti-
tutions, "san armed band of raiders.’ Mr. Bishop, the wit-
ness for the prosecution, and onc of the parties who published
this notice, says, ‘I have scen the term raid used pretty often
during the war. I understand that raiding means the march of
an army into the enemy’s country; by army, I mean a large
or a small number of soldiers.” So Mr. Bishop admits that the
prisoners were Confederate soldiers, und that they came as such
into St. Albans. ‘he definition of the word * raid,” given by Mr.
Bishop, corresponds with that of all the American dictionaries.
Raid is defined, a hostile incursion, In General Dix’s proclama-
tion, which is also produced in evidence, the prisoners are therein
styled rebel marauders. ‘The President of the United States
revoked the latter portion only of General Dix’s order, whereby
the latter invited every American commander on the frontier to
cress the boundaries, and leaves the first portion subsisting, which
contained the distinct admission that the prisoners were rebel ma-
rauders. ‘This was a positive admission by beth the military and
executive authorities of the United States, that the parties engaged
in this act were military men, that they were rebels, and that their
object was a politico-military one ; which was in direct opposition to
the demand now made for extradition, So, the parties injured, the
inilitary authorities and the executive of the United States, have ad-
mitted that the accused were rebel soldiers, and that they committed
the outrage as such. ‘The best proof of the politico-military nature
and character of the deed of the prisoners is the very issue raised
in this case. At every step, at every stage, your /ionor is called
upon to apply a principle of international law. it is the only mea-
sure by which the facts can be tested. ‘The prisoners assert their
immunity as soldiers; they rely for their justification on the law of
war, and contend that their act is part of the hostilities of their
country against their enemies. ‘The applicants on their side will,
no doubt, contend that the prisoners violated the rules of war regu:
lating the mode of carrying on hostilitics. So, it becomes entirely
a question of transgression of the usages of war, even in the opinion
of the applicants themselves. The laws of war are part of the
international laws ; every question of international law on this sub-
ject i3 political. ‘To ascertain the criminality, to be satisfied of it,
the judge must first decide that a violation of those laws has been
committed: he must sit on judgment upon nations, condemn the
a
Seg NEED an ere
UY AST a RN UR Rn, 5 a ter
207
oe eet aetiiaeee e —
* the one to whom those soldiers belonged, and whose agents they were, ti
have \ and after pronouncing the illegality of the act, deprive them of the 4
The } immunity granted to soldiers by all civilized communities in the a
ch is : world, and : stamp them as common robbers and murderers. Taking y
ppre- ror granted that the Court can take cognizance of the laws of war, ‘
insti- : and decide upon the right or wrong of a cause adopted by one of the
/ wit: i “ belligerents, then the party so held to account would be entitled He
ished offer his justification on the ground of retaliation. The undisputed Whe
often i uncontradicted rules of war, under their mildest form, allow :
ch of devastation and plunder ef inoffensive and unarmed citizens for ‘sa
large retaliation. All the modern rules of warfare are often suspended HI
i the to give full scope to the most severe rules, when necessity or even ih
such expediency require. If justifiable in any case, who shall judge of ls
y Mr. the right’ ‘The prisoners in such a case would be entitled to M4
aries. offer their justification, on the plea of retaliation for worse outrages He
lama- committed in their country by Federal troops. The Confederate lh:
1erein Government assert their right to retaliation ; they contend that the i
States Federal soldiers have committed outrages unparalleled in any war. We
ereby If so, the deed complained of is and must be considered free from Ot
ier to all censure. But the judge cannot make or allow this investigation. th
which: This evidence has been properly excluded, because the judge cannot i
| ma- ransack history to find out the guilty nation, to determine whether it
y and retaliation and retortion ought to have been made. Therefore, it
vaged is, that every where. when a deed has been committed by regular
their commissioned soldiers. every nation and every tribunal ‘of every
ion to nation are bound to presume that some good reason existed for it,
1, the and accept it as an act of war. If the Kederal authorities deem it
e ad- an outrage, a gross violation of the rules of war, let them take to
| ritted
ature
aised
alled
mea-
account the Confederate authorities, and ask ex planation from them,
as they did of the British Government in 1812; and if they do not '
obtain satisfaction, let them retaliate. Until they have obtained
explanations, they are bound to consider the acts of their enemy’s i
soldiers as acts of their enemy.
their In this case there was something even more directly showing the
aw of political character of the deed. ‘Taking for mstance the effect. that
their this outrage had had in the North; the fact that the whole civil
will,
regu-
tirely
pinion
f the
B sub-
of it,
been
1 the
and military authorities were incensed, and almost threatened te
wage war on Great Britam; did this not show that it was a well
soneaeied effort to bring succor to those who planned it; that it
would have the effect of calling back part of the army from the
front for the protection of the frontier’ Was this not a very
smportait political act on the part of the South? But this was a i
point on which it was unnecessary to dwell. The political and
military character of the offence had been established beyond a
doubt. It was in every way an act of war even if it was not in
accordance with the common usages.
268
Independently of the reasons given to refuse extradition on the
grounds of the political and military character of the offence, the
fact that this expedition was directly ordered by the Confederate
authorities affords complete justification for whatever the prisoners
have done.
It is proved that the leader of the party, Bennett H. Young, was
regularly appointed for special service. His instructions were to
collect twenty men Confederate soldiers who were then in the ene-
mey’s lines and to report to Mr. Clay for orders. By these instrue-
tions, the Government to whom he owed civil and militar v obedience
declared to Young that Mr. Clay was to all intents and purposes
their representative, that Mr. C lay was their agent, and this autho-
rity was just the same as if the orders had come from the President
himself accompanying the instructions appointing Mr. Clay, Gov-
ernment agent. Young could not dispute ov even question Clay's
authority. His superiors enjoined him to comply absolutely and
unconditionally with his directions. [fe was informed that Mr
Clay was the direct channel of the Government, and so far as
the object of this mission was concerned and all its details, was
the Government itself. Whatever Mr. Clay would have deemed
necessary to order, was as fully within these instructions as_ if
had been included in the commission itself. It matters not what
was the general authority of Mr. Clay with respeet to the Con-
tederate States, or m what position be stood tewards: them if
matters not what was his appointment or office. In relation te
Young’s mission, his authority from the Government was unlimited,
and so appears from the tenor of the documents adressed to Young.
He had to direct absolutely, and Y oung and his party had to obey.
Were the prisoners to take upon themselves to criticise the
orders and instructions of their Government? Could they as soldier’
scrutinise the documents, investigate the nature and duties of zovern-
ments, ascertain whether they went beyond the ordinary limits for
action fixed by the rules of international law? Tf the ¥ oheved these
orders, can they be amenable as common eriminals to the tribunals
of the Federal Government, there to be tried as common highway-
men? As subjects to the C onfederate Government and as soldiers,
if they refused to obey orders they are to be tried and shot; and i+
is now contended, by the ap plicants, that for having obeyed, they
inust be deprived of the immunity belonging to soldiers, and deli-
vered to their enemies to be tried as common eriminals.
The prisoners fulfilled their mission, they exeeuted the orders
given to them. They proceeded from Chicago where their beak was
formed, where the plan was mi ide to assail the uaa frontier of
the enemy. It was discussed and settled there: St. Albans was
selected as the spot to be first operated upon. Aine went to
EERE RES Se RS FORRES Se
1 the
, the
srate
ners
wars
WO
ene-
truc-
ence
)08e8
itho-
dent
Gov-
lay’s
and
Mr
ras
, Was
>med
ag it
what
Con-
rm 1
n to
ited,
ung.
bey.
the
lieré
ern-
s for
hese
nals
way-
1ers,
id i
hey
leli-
lers
was
rol
Was
t to
ES LPNS SS ER SDA a tees
209
St. Catherines tv couter with Mr. Clay who sanctioned the whole
expedition, and in fact ordered it. That Mr. Clay did order it, there
can be no doubt. He repeatedly admitted it. Several witnesses
testify to it, particularly Mr. Cleary, and the two Messrs. Sanders.
In a matter of this description the declaration made by the official
appointed for such specific political object, must be considered as the
hest evidence. Young returned to Chicago, and thence proceeded
through Canada, as an ordinary traveller, to St. Albans. It is proved
that four oaly of his command passed on British territory. The others
were and had been living and plotting in the enemy’s lines. ‘The only
supposition as to them must he, that feeling secure enough to conspire
in the enemy’s territory and to remain there, they could as well come
through American ground to St. Albans ; ; which was probably the
better way to avoid rousing the suspicions of the people of St.
Albans. They arrived in St. Albans on the afternoon of the nine-
teenth of October, they collected together; and in broad daylight, at
two o'clock of the afternoon, in a town of four or five thousand inha-
bitants, took possession of three banks, plundered them, attempted
to set fire to the place, provided themselves with horses which they
took from the citizens, and effected their escape with their booty
from amongst the population who rushed to arms and pursued them,
firing. It may be termed an outrage, a violation of the modern
usages of war; but history will look upon it as a bold and daring
feat.
It was within the power of the Government to order Young to
sack and burn the town, and he had to obey his orders, not to take
upon himself to judge of his superiors. He had only one duty to
perform, and that at the risk of his life. He stood in the same
position as a general who had received orders to invade the terri-
tory of an enemy for some purpose ; and the moment the Govern-
ment declared that that party were acting for them, there ended
any responsibility on the part of the individual. ‘The Government
could not be judged by any court. ‘Tle party who obeyed was
right. Le acknowledged no other superior than the Confederate
Government, and he was bound to do his duty as a soldier, and not
hesitate when called upon to execute a commission of danger. LHe
did it, and in the most b; ave manner in which he could, declaring
that he was a Confedera: officer, that his men were Confederate
soldiers, and what he did was an act of retaliatory warfare for what
had been done in the South. For such conduct he assuredly
could not be held up as a murderer and robber. From the very
origin of the expedition it was a national, not an individual act,
for which the parties executing it cannot be made responsible ; or
in any manner accountable, except to their superiors. They, as
soldiers, were mere iwechanical agents, passive subjects of the
ener
Ee
emir OT ee
NOE
to
70
moving power. ‘Their sole duty was obedience ; and for fulfiling
that duty they cannot be amenable to the municipal tribunals of
the enemies of their government. Obedience to the constituted
authorities is a primary and essential obligation of all civilized
communities. ‘To render an individual liable for acts done in obe-
dience to positive orders given by the authorities which he acknowl-
edges as his legitimate superiors, would be subversive of all order.
It is not in a British court of justice that such a proposition can be
doubted. This question never was more ably treated and exposed
than by Judge Talmadge, in his review and criticism of the judg-
ment rendered by Judge Cowan in the celebrated case of MeLeod.
Judge Cowan and the authorities of the State of New York con-
tended there, that an illegal act of war could not be sanctioned by
the government of the offender, to shield him from responsibility t
the municipal tribunals of the offended nation. This will prob:bly
he ame doctrine urged by the United States Counsel in support of
ther pretensions at this moment. No better, more clear and logica!
3 uta ation was ever made of this fallacy than’ by this eminent judge,
spo by all the most distinguished jurists of that time in the
aited States, and confirmed by Daniel Webster. the greatest states-
man, orator, and lawyer this continent has ever produced. Any of
‘he arguments after those given by such men would be useless.
(sea follow quotations from Judge Talmadge’s review to be found
-6 Wendell’s Rep... and Webster's speech in support of the
Treaty at page 122 of the 5th vol. ot his works. )
“ne attack upon the Caroline, says Judge ‘i'almadge, was
hostile and unlawful, and the British must be held responsible for
it. It amounts to a lawful cause of war; but those engaged in tt
or acting under lawful authority can never be regarded as robbers
or plunderers, or liable to be punished criminally.”
It was then settled at the carnest request of the British Govern-
aent that the individual could not be responsible for an act cor-
mitted on behalf of his Government when admitted and sanctioned
by it, notwithstanding the American authorities declared that
the act in question was illegal, a violation of their sovereignty, for
which Enejand should be brought to account.
The sa:ne principle was sanctioned by the Courts ot England by
several positive decision Ticfer toa ease in the Privy Council
of the Secretary of State i Council of India and Kamachee Boye
Sahaba, 13 Moores’ Rep., p. 22. The gestion there arose as te
seizure made by an agent of the Kast India Company, of property
belonging toa native prince. ‘The Courts in India had ordered
the restitution of the property as having been ee gally made. The
case came before the Privy Council on appeal, and the judgment
declared :-—
ES DEE Eb DRAMA RAT ON ARIS ERD RRR IT
filing
ls of
buted
lized
obe-
nowl-
rder.
m be
nosed.
judg:
Leod.
; Con-
ri by
ity t
bubly
ort of
ogica!
udge,
in the
tates-
ny of
eless.
found
f the
Was
le for
in it
hhers
yern-
COT)-
ioned
that
Vy, for
vd by
unel!
Boye
as ta
perty
lered
The
ment,
pete:
oy ae RTE CR a eT
271 iis
“‘ Of the property or justice of that act, neither the Court below Hie
nor the judicial Committee have the means ef forming, or the right Ne
of expressing, if they had formed any opinion. It may have been We
jast or unjust, politic or unpolitic, beneficial or injurious, taken as Hie
a whole, to those whose interests are affected. These are consi- | 4]
derations into which their Lordships cannot enter. It is sufficient ie
to say that even if a wrong has been done, it is a wrong for which Ki
no Municipal Court of Justice can afford a remedy.”” The Court |
held that an act done by an agent of tho Government, though in
excess of his authority, being ratified and adopted by the Govern- i
ment held to be equivalent to. previous authority. i
In the ease of Buron vs. Denman, 2 Exch. Rep., 167: an action |
for damages by reason of the Defendant, an officer in the English
Navy, destroying slave baracoons. ‘The illegality was established.
The English Government, it appeared, adopted his acts as having Hit
been done by their authority, which the Court held equivalent. to ( i
i
prior instructions ; being an act of state, the Crown was held to ' ihe:
be alone responsible, and therefore no action would lie azainst the if
Defendant. Par
In Knapp’s Rep.. V. 4, another case is found where the Privy Nf
Council held that Municipal Courts could not interfere to decide |
upon the legality of any destruction of private property, by an officer
pendente bello,
These authorities establish that the individual is not responsible
for the act committed on behalf of the Government.
Supposing war was going on between the States and England, and
a militia officer here was ordered to burn a town on the frontier,
would he go to his superior officer with a hook on International law,
diseuss with him the propriety of obeying, and enquire as to the
limits of the rules of war? ‘The answer would be given by a Court
Martial. It was said that the parties should go before the Courts
of the United States, in Vermont, to sot up these pleas of justifi-
cation, where they might be urged wit! advantage, and where alone
they could be urged by the prisoners before a jury on their trial
on ‘the other side of the lines. ‘This is a monstrous proposition.
The idea of sending them to set up this defence is a cruel mockery.
an insult to common sense, an outrage against humanity. They
cannot defend themselves there. Every one knows it is impossible
for them to be heard upon any of these very grounds which establish
their imocence. ‘The moment they reach there all this vanishes, it
will not be received. They will scoffat President Davis’ commission :
they will deny them the privilege of soldiers: none of this will avail
them. What justification, what plea can be offered for the prisoners
there, when the Judges of the Courts can consider them in no
other light than rebels; when Jefferson Davis i, considered as a
rebel, a private individual whose commissions are entititled to no
272
consideration, making every act of war on land robbery, and every
act of war on sea piracy. Have we not the declaration of the judi-
ciary of the United States on this point fully expressed by Judge
Nelson in his charge in the case of the Savannah, before whom
commissioned Confederate officers and sailors were indicted as
pirates. They pleaded their commission, their belligerent character,
the authority of Jefferson Davis. What did the Judge say ?
‘Tn a state of war (says Judge Nelson presiding at the trial)
hetween two nations, the commission to private armed vessels from
either of the belligerents affords a defence according to the laws of
nations in the Court of the enemy against a charge of robbery, or
piracy on the high seas of which they might be guilty in the absence
of such authority.”
‘‘'his branch of the defence involves consideration that does
uot belong to the Courts of this country. Until the departments
of state have recognised the existence of the new government the
pt eee
’ Courts of the nation cannot. Until the recognition of the new
government, the Courts are obliged to regard the ancient state
of things as unchanged.”
These are the words of one of the worthiest Judges in the
United States. And this Judge charged the jury to convict
these men of piracy. Ilappily for the prisoners, some of the
jurors would not ass. .¢ to this doctrine; the jury could not
agree. But such is tho law in the United States. In this same
manner would the commission, the instructions, or the belligerent
condition of the prisoners be received by the Judge in the State of
Vermont before a jury called to try the prisoners. What justice
i can they expect when the right of defence is absolutely denied ?
3 'To deliver them would be to doom them to an ignominious and cer-
tain death. ‘To extradite them on this ground that they shall have
ee a fair trial, that the responsibility would be with the United States,
is as good, as sound an excuse as that of the Inquisitors who, being
taxed of sending some innocent victims to death, say we are not
responsible for their death, we only deliver them to the secular
power, we extradite them; but he alone is responsible for their
death. It would be as good a reason as that offered by an indivi-
4 dual on a charge of murder for having thrown a man over a bridge
and who would offer as his justification that he was not guilty be-
cause the man drowned himself, and that he could be made respon-
sible only for depriving him of the use of the bridge.
Let this be a precedent ; allow a prima facie case to be all that
shall be required for extradition, and you must extradite every dan-
1 gerous enemy of any government. In a civil war you deliver them
| over to their infuriated enemies, if they be civilians; if they be
military, to thier exasperated victims. You send them to plead as
S. B. Davis, before a military court martial of his enemies, that he was
trial)
; from
ws of
ry, or
sence
5 does
ments
nt the
e new
, state
in the
sonvict
of the
ld not
3 same
gerent
tate of
justice
pnied ?
nd cer-
| have
States,
, being
re not
pecular
- their
indivi-
bridge
lty be-
espon-
ll that
y dan-
* them
ney be
ead as
1e Was
NNR YS
ore
~1o
the inoffensive and devoted messenger sent to procure, for four un-
fortunate countrymen, the prisoners, some documents required as
evidence to save their lives, and who received for answer to this
plea a sentence of death by a court martial. You send them to
nial with the same success as Beall, a colleague and fellow soldier
in the same deed as Burley, who was extradited for robbery by the
judges of Upper Canada, and who pleaded to the charge of destruc-
tion of the Philo Parsons a commission and justification by President
Davis, and who obtained for answer to this plea a sentence of death,
which was strictly executed.
The enemies of the prisoners, they who demand their extradition,
cannot judge them: they can only exercise vengeance.
One of the great ends of the institutions of civil society, says an
eminent English judge, is to prevent men from being judges in
cases where they are concerned, and to remit the decision of
adverse interest to those who can have no interest in the determi-
nation of such cases.” In this instance you would deliver the lives
of these men, not to the judgment of adverse interest, but to the
most bitter and violent passion of hatred, that which can be found
in civil wars alone.
No American statesman nor any writer of any moment has ever
asserted that these men should be extradited. They have com-
plained of the want of sufficient prevention of such outrages on our
part. They claimed that the offenders should be punishe ‘d for the
violation of our soil, for the abuse ef our hospitality by the South-
ern refugees : but none have dared to assert, as a legal proposition.
that they were entitled to obtam the extradition of the prisoners.
Our Government has complied fully with their demand by the
passing of the Ahen Bill; and [ trust that it will be considered
sufficient satisfaction. If this law does not give our neighbors the
protection they require, let them demand further legislation on our
part,—they will have it. If the right of refuge itself is obnoxious
to them, let it be abolished at their request ; but so long as it
remains wnmpaired—so long as our legislature has not abolished
this ancient hberty—our judges must and shall uphold it. They
will protect the refugee i in the enjoyment of that shelter which our
institutions guarantee to him. They never will allow policy, ex-
pediency, to sway them to overrule principles of law. A thousand
times better,—more honorable for us,—more just,—it would be to
let the world know that political refugees shall be entitled to this
right only when it shall not be dangerous for us ; a thousand times
better and more humane to give a fair warning to all that the prin-
ciple, which never was doubted or questioned in England, is inope-
rative and inefficient in Canada. It was always considered as a
beacon light to a safe harbor for distressed political fortunes ; if it
Q
oO
274
be no more so, at least, do not use it as a false light to wreck them.
Our courts cannot be influenced by any thing but right and justice ;
they cannot be made subservient to power or authority. We have
not yet reached that state of degradation. We have had unfortu-
nately i in this case too strong evidence of direct interference by our
local Government. We have seen one Judge suspended, because
he discharged the prisoners. Happily, however, we have a Judge
who is independent of power, and in whose hands every ‘aan in
this community would sooner intrust a question of life and death,
with all the influence of Government and popular clamor against
him, than in the hands of any jury; and [ leave the case of the
prisoners with unbounded confidence in the hands of your Honor.
March, 21st, 1865.
Mr. Devlin, on behalf of the United States, said:
It is, [ have no doubt, as gratifying to you, as it certainly is to
the Counsel who here represent the Governments of Canada and
the United States, to find that the time and attention bestowed upon
this Investigation have at last triumphed over the numerous and
unexpected “obstacles opposed to its termination, and brought us to
that stage of the enquiry which enables us to address your Honor
upon the merits of the application for the extradition of the pris-
oners. ‘The case, as I view it, is one of extreme simplicity ; and
although it has attained to an unusual magnitude, and attracted
public ‘attention perhaps to a greater degree than any demand ever
before made under tie Treaty, [ have certainly so far been unable
to discover that it presents any feature calculated to embarrass the
Court in dealing with it, or that even tends to withdraw it from the
category of crimes enumerated im the Treaty under which we are
now ‘proceediny. True it is that the prisoner's Counsel have labored
hard to surround the act of their clients with grave international
difficulties, and to impress upon it the character of an act of war; ;
but I flatter myself, that submitted as it will be to the test of sound
sense and judicial scrutiny, the crime of robbery, of which the pris-
goners are accused, will still appear, despite all the filse coloring
under which it has been so ingeniously presented to your Honor’s
judgment. And here [ may remark, that to me it doth seem as if
my learned friends fancied themselves endowed with some extraor-
dinary magical influence ; for certainly without their supposed pos-
session of some such rare and wonder-working power, it would be
difficult indeed to believe that they would have attempted to elevate
a daring act of robbery to the dignity of a manly deed of warfare,
or claimed for its guilty perpetrators the consideration duc to the
honest warrior who uses his arms for the legitimate objects of war.
mM.
ce
Ave
rtu-
our
use
dge
13 to
and
upon
3 and
us to
Tonor
pris-
and
acted
ever
nable
; the
m the
e are
bored
tional
war 5
ound
pris-
oring
ynor’s
as if
raor-
pos-
d be
evate
fare,
o the
war.
and not as the prisoners did at St. Albans, for the ignoble and savage
purpose of robbing and murdering unarmed and defenceless citizens.
[ have said, your Honor, that ‘thi. enquiry, notwithstanding the
simplicity of the question involved in it, has attained an extraordi-
nary importance, so much so, indeed, thanks to the fertile genius of
my learned friends, that it has become a cause célébre. But let
me ask what is it that has thus distinguished the St. Albans Raid,
and given to it a world wide notoriety ! I answer unhesitatingly,
its sional atrocity, the fraud and cunning by means of which it was
achieved, aided, no doubt, by the extraordinary efforts subsequently
made by the friends and sympathisers of the prisoners to strip their
wicked deed of its criminal responsibility and to make of them, its
guilty perpetrators, heroes if not martyrs. Be this, however, as it
may, I entertain the hope,in which [ trust [ will not be disap pointed,
that senseless clamor will not here!) permitted to drown the voice
of public justice. ‘That your Io: ver mindful of the high and
solemn trust reposed in your as one of the chosen administrators of
the laws of our country, will not suffer your attention to be diverted
from the consideration of the justice of our demand by the inflam.
inatory speeches addressed by the learned Counsel ostensibly to
you, but in re ality to the passions, prejudices , and sympathies of
the auditory which has filled this spacious Court-room from day to
day. And, now, let me ask what does the duty imposed upon you
require ? It demands neither more nor less than that you should
vive effect to the provisions of a ‘Treaty without which Canada would
soon become a place of refuge for eriminals of ever "vy grade, an asy-
lum for malefactors of every dye. For be it remembered that it
was with the object of protecting the subjects of Her Majesty and
the citizens of the United States from the direful consequences
that inevitably followed where great criminals were allowed to
escape the punishment due to their crimes » by Heeing from one
foreign territory into another, that the Coveruments of England
and the United States entered into the solemn Treaty which now
gives your ILonor jurisdiction to investigate the charges preferred
against the prisoners. This treaty, as your Hfonor is aware, was
assented to at W ashington on the ninth of August L842, and rati-
fied in the month of October following. — 1 refer to its stipulations.
applicable to this case, with the view of showing more clearly the
obligations it imposes upon us. It is to be found in the Consolid-
ated Statutes of Canada, Cap. 89, p. 945, and commences thus :
‘¢ Whereas, by the 10th article of a Treaty between Her Majesty
and the United States of America, ratified, &e., it was agreed that
Her Majesty and the said United States should, upon mutual requi-
sitions by them or their Ministers, Officers or Authorities respec-
tively made, deliver up to justice all persons who, being charged
Vy NG
Ia ey aN «
> 2, V7 \W y 4h \’ ¢& <
\ aA qV eet
W a. seb We ck ES
Y & .@
WW > N < ye
SZ we <
x \e
=i day _4 , ;
LO #2 tagag93 =I] a = =
i = ae rae oe)
rt oll) =|) xy Se |
re BA °
SO
SX
D N
AP GY SW” HS
y “wee EN nS \Y ~
aN & “ps
. NF OTS
276
with the crime of Murder, or Assault with intent to commit Murder,
or Piracy, or Arson, or Robbery, or Forgery, or the utteranco of
Forged Paper within the jurisdiction of either of the high contract-
ing parties, should seek an asylum, or be found within the terri-
tories of the other.’”’ Tere we find that there can be no mistaking
the class of offenders marked out for extradition, which, be it re-
membered, the same article of the Treaty commands shall be granted
‘¢upon such evidence of criminality as according to the laws of the
place where the fugitive or person so charged should be found,
would justify his apprehension and committal for trial if the crime
or offence had been there committed, and also provided that the
evidence of criminality should be heard and considered by the
Judge or Magistrate issuing the warrant, when, if deemed sufficient
to sustain the charge, it became the duty of the Justice to certify
the same to the proper executive authority, in order that a warrant
of extradition might issue.”’ ‘This, your Honor, is the only test to
which the guilt of any person demanded under the ‘Treaty can be
subjected until he is made to answer for his crime betore the
tribunals of the country against the majesty of whose laws he has
offended. Who will say that this is not a wise measure of protec-
tion, if not of prevention, against the commission in our midst of all
or any of the foul crimes indicated in the Extradition Treaty ? Is
there a law-abiding citizen in Canada who wishes for its abroyation ?
I believe there is not: and yet, strange as it may appear, this in-
vestigation has revealed the startling fact that there are at this
moment very many among us who erroneously imagine that this
national convention, so necessary for the repression of crime, and
so needful for the protection of society, dependent for its existence
upon the good faith observed in its execution by both the contract-
ing parties, may upon a special occasion be treated with indifference,
or, in order to secure the immunity from punishment of some highly
Yavored criminal, be ignored in such case altogether.
In refutation of this mistaken notion of our duties and obligations
under the Treaty, I will now read from the published opinions of
eminent Jurists and distinguished statesmen, a few extracts, to show
their appreciation of the benefits derivable from its existence, and
the rule to be observed whenever its execution becomes the subject
of demand by either of the high contracting parties.
Upon this point I refer firstly to a debate which took place in the
House of Lords, in the month of February, 1842, when this Treaty
was the subject of discussion. Upon that occasion Lord Brougham
said :—“ He thought the interests of justic> required, and the rights
of good neighborhood required, that in the countries bordering upon
one another, as the United States and Canada, and evei that in
England and in the European countries of France, Holland, and
‘der,
0 of
ract-
terri-
aking
it re-
anted
of the
found,
crime
at the
vy the
ficient
certify
rarrant
test to
can be
yre the
he has
protec-
st of all
y? Is
this in-
at this
nat this
me, and
xistence
ontract-
erence,
e highly
ligations
nions of
to show
ce, and
subject
e in the
3 Treaty
rougham
1e rights
ing upon
that in
nnd, and
rey Br
Belgium, there ought to be laws on both sides giving power under
due ‘regulations and safeguards to each Government, “to secure per-
sons who had committed offences in the territor y of one, and taken
refuge in the territory of the other. Ie could hardly imagine oe
nations could maintain the relationship which ought to exist ‘bets,
one civilized country and another without some ‘such power.
‘‘ Lord Campbell, for his own part, should like to sce some gene-
ral law enacted and held binding on all states, that each should
surrender to the demand of the other all persons charged with
serious offences, except political; this, however, he feared was a
rule or law which it would be difficult to get all nations to concur
ine”
Upon the same subject, Sir Robert Peel, replying to Lord Pal-
merston’s speech condemning the other provisions of the Treaty,
observes :—The next point to which I shall refer is the article of
the late Treaty providing for the mutual surrender of persons
charged with offences. The noble Lord admits that the general
object aimed at by the article is a wise one, that when the countries
have a common boundary, the escape of criminals by stepping over
that boundary, is prejudicial to the cause of good order, and inju-
rious to the interests of both countries. The reciprocal delivery of
heinous criminals is clearly an object of importance to civilized
Governments.” Hansard’s Parliamentary Debates, 3rd series.
vol. 67, p. 1228.
President Tyler, in his Message communicating the Treaty to
Congress, observes :——*‘ The surrender to Justice of persons, who,
having committed high crimes, seek an asylum in the territories of
a neighboring nation, would seem to be an act due to the cause of
general justice, and properly belonging to the present state of civi-
lization and intercourse. The British Provinces of North memes
are separated from the States of the Union by a line of several.
thousand miles, and along portions of this line tie amount of popu-
lation on either side is quite considerable, while the passage of the
boundary is alwayseasy. Offenders against the law on the one side
transfer themselves to the other ; sometimes with great difficulty
they are brought to justice, but very often they wholly escape. A
consciousness of immunity from the power of avoiding justice in this
way instigates the unprincipled and reckless to the commission of
offences, and the peace and good neighborhood of the borders are
consequently often disturbed.” (Message of President of U.S. to
House of Congress, August, 1842.)
Mr. Webster, the American negotiator of the Treaty, in his Hae
brated speech, delivered, I helieve, in 1846, in defence of
provisions, ret ferring to the tenth article under which we are now
proceeding, spoke of it in the following terms :-—* T undertake to
eee?
278
say that the article for the extradition of offenders contained in the
Treaty of 1842, if there was nothing else in the Treaty of any im-
portance, has of itself been of more value to this country, and is of
more value to the progress of civilization, the cause of humanity,
and the good understanding between nations, than can be readily
computed. What was the state and condition of the country on
the borders and frontiers, at the time of this Treaty? Why, it was
the time when the “ Patriot Societies,” or ‘‘ Hunters’ Lodges ”’
were in full operation, when companies were formed and oflicers
appointed by secret associations to carry on the war in Canada ;
and as I have already said, the disturbances were so frequent and
so threatening, that the United States Government despatched
General Scott to the frontier to make a draft on New York for
militia, in order to preserve the peace of the border ? Nothing but
this agreement between the two governments that, if those ‘ Patri-
ots” and “ Barn burners ”’ went from one side to the other to destroy
their neighbors’ property, trying all the time to bring on a war,
(for that was their object,) they should be delivered up to be pun-
ished. They were heard of no more,” JWebster’s Works, vol. 5,
. 189.)
Vattel, speaking of Treaties, says: ‘* The faith of Treaties—
that firm and sincere resolution—that invariable constancy in ful-
filling our engagements, of which we make profession in a Treaty,
is therefore to be held sacred and inviolable between the nations of
the earth, whose safety and repose it secures; and if mankind be
not wilfully deficient in their duty to themselves, infamy must ever
be the portion of him who violates his faith.
‘¢ He who violates his Treaties, violates at the same time the
law of nations: for he disregards the faith of Treaties--that
faith which the law of nations declares sacred; and, so far as
depends on him, he renders it vain and ineffectual. Doubly guilty,
he does an injury to his ally, he does an injury to all nations, and
inflicts a wound on the great society of mankind.”
On the observance and execution of treaties, “‘ said a respectable
sovereign,” depends all the security which princes and states have
with respect to each other ; and no dependence could henceforward
be placed in future conventions, if the existing ones were not to be
observed. ‘The man who violates and tramples under foot treaty
engagements is a public enemy, who saps the foundation of the
Narre a common safety of nations.—(Vattel, B. 2, cap. 25,
p. aad.
Upon the same subject, Chief Justice Jay, in his day a most
eminent jurist, and, if I mistake not, the negociator of the treaty
known as the “ Jay Treaty,” in delivering his charge to the Grand
Jury in the celebrated case of Henfield, tried in the city of Rich-
thie
im-
is of
ity,
dily
y on
was
eS 9
icers
rda ;
and
ched
k for
r but
atri-
stroy
war,
un-
AL dD,
‘ies——
n ful-
reaty ,
ons of
d be
ever
e the
—that
ar as
uilty,
, and
table
have
ward
to be
eaty
\ the
25,
mond, on the 22nd of May, in the year 1705, for a violation of the
neutrality laws of the United States, observed: “ Treaties between
independent nations are contracts or bargains which derive all their
force and obligations from mutual consent and agreement; and
consequently, when once fairly made and properly concluded, can-
not be altered or annulled by one of the parties without the consent
and concurrence of the other. Wide is the difference between
treaties and statutes: we may negociate and make contracts with
other nations, but we can neither legislate for them nor they for us
to vacate or modify treaties at discretion. ‘Treaties, therefore,
necessarily become the supreme law of the land. The peace, pros-
perity, and reputation of the United States will always greatly
depend on their fidelity to their engagements, and every virtuous
citizen (for every citizen is a party to them) will concur in observ-
ing and executing them with honor and good faith ; and that whether
they be made with nations respectable and important, or with nations
weak and inconsiderable, our obligation to keep our faith results
from our having pledged it, and not from the character or descrip-
tion of the state or people to whom neither impunity nor the right
of retaliation can sanctify perfidy ; for although perfidy may deserve
chastisement, yet it can never merit imitation.”
Upon this branch of the case I will not dwell longer, as I believe
that your Honor is as fully sensible of the importance of our exe-
cuting in good faith our treaty engagements, as have been the dis-
tinguished men whose opinions upon this subject I have briefly laid
before you. But while it is our duty to give due effect to the treaty
when its execution is demanded, we must guard against its being
made to become in our hands an instrument of oppression or of in-
justice. I will, therefore, with the view of showing the justness of
the present application, address myself to the consideration of the
facts upon which is founded in this instance the demand of the
United States for the extradition of the prisoners ; premising that
before we can invoke the operation of the treaty, we must have
clearly, unmistakably, and in accordance with the rules and re-
quirements of the law as it exists, here establish three facts :
Hirst.—That the particular offence which has caused the de-
mand for extradition, was committed at the time and place alleged
by us.
Secondly.—That it is one of the offences mentioned and de-
scribed in the treaty.
Thirdly, and lastly.—That the persons whose extradition is by
reason thereof demanded, participated in the commission of the
guilty deed.
This, your Honor, as I understand the object of our investiga-
tion, is the most important branch of our enquiry, and, therefore,
280
the first to merit our attention. Impressed with this conviction of
our duties and responsibilities, I will now proceed to discuss the
evidence we have adduced in support of these three propositions.
What then are the facts proved, if any? I answer, that it is
proved beyond the possibility of doubt that long previous to the
19th day of October last, the day when the crime in question was
committed, a plan was organised in our Province of Canada, by a
party of men calling themselves Southern Refugees, who at the
time were enjoying the hospitalities of our citizens and the pro-
tection of our laws, which plan had for its object the robbery of |
our neighbours in the peaceful town of St. Albans. It is proved
that in pursuance of this illegal and treacherous organization, and
two or three days preceding the said 19th day of October, these
so-called refugees, to the number of about twenty, secretly left this
Province, and stealthily introduced themselves into the town of St.
Albans. It is proved that after their arrival there, and so soon as
these evil-disposed visitors had marked out the persons whom they
intended should become the victims of their cowardly and felonious
operations, they cast aside the disguise assumed for the occasion,
and in the afternoon of the 19th day of October last, suddenly
emerged from their hiding places, and appeared among the un-
suspecting citizens of St. Albans, armed with the deadliest kind of
weapons ; each man of the party threatening instant death to all or
any of the panic-stricken citizens who dared to oppose him in his
work of plunder.
It is proved, that having been thus armed, some of the gang
entered the St. Albans bank, and, having taken violent possession,
closed its doors ; that immediately after this first act in the tragedy
so treacherously performed, Mr. Samuel Breck, unconscious of the
danger that awaited him, knocked for admission, and was permitted
to enter. Itis proved that no sooner had he done so, than the door
of the bank was again closed; whereupon he was violently seized
by one of the robbers, who presented a revolver close to his head,
threatening at the same moment (I use the words of the witness)
to blow his brains out if he (Breck) did not then deliver to him a sum
of money which he had brought with him to the bank for the pur-
pose of redeeming his promissory note, unfortunately for him, due
on that eventful day. It is proved that Breck, seeing that resist-
ance upon his part would but lead to his being shot dead upon the
spot, yielded to the threat of his murderous assailant. and allowed
him to take his money, amounting to about $300, and which, as I
have already stated, he carried with him to the bank for the pur-
pose of paying his note.
It is proved, that during the continuance of this cowardly opera-
tion (politely designated by my learned friends an act of war),
yn of
» the
ms.
it is
» the
1 was
by a
t the
pro-
apy of
ile ;
1, and
these
ft this
of St.
oon as
n they
onious
cASION,
ldenly
he un-
kind of
) all or
in his
p gang
ession,
ragedy
: of the
mitted
1e door
seized
s head,
itness )
a sum
le pur-
m, due
resist-
bon the
lowed
1, as 1
© pur-
opera-
war),
281
others of the same gang were keeping watch on the outside of the
bank, with the view of guarding their licht-fingered friends in the
inside from being suddenly surprised, or even rudely interfered
with, in their work of plunder. It is also proved, that others of the
same party were, at the same moment, engaged in the highly
honorable and of course ‘“ warlike act” of stealing horses, with
which to enable the honest warriors, one and all, to seck safety in
flight so soon as the work of robbery was completed. It is proved,
that after their thirst for plunder was satisfied, these valiant sol-
diers mounted the stolen horses, and, with their ill-gotten booty,
fled to Canada, which they had left a few hours before ; but mark,
not before they had imbrued their hands in the blood of the unfor-
tnnate and unoffending man Morrison, whom they then and there,
without the shadow of a cause or provocation on his part, brutally
murdered. But to this cruel deed I must not make further refe-
rence, as it is not at this moment the subject of investigation.
It is also established, that so soon as the report of these infamous
outrages upon the lives and liberties, the honor and property of
our neighbors, had reached the ears of the Government and people
of this Province, they elicited from one and all a general outburst
of earnest and well-merited indignation, heightened by a knowledge
of the fact that the murderers and robbers had sought a place of
refuge in Canada, which they had evidently made the base of their
nefarious operations.
It is well known that the Government of this country, animated
by a lofty sense of justice, and moved, as well by a desire to mark
their abhorrence of the crimes committed at St. Albans, as te:
maintain our friendly relations with the United States, ordered the
immediate employment of every means at their disposal necessary
for the apprehension of the offenders; the result of which was the
arrest in this Province of thirteen of the gang, all of whom unfor-
tunately were subsequently allowed to escape. How or why this
was permitted it is not necessary I should now stop to enquire, par-
ticularly as the circumstances under which the prisoners cluded
justice, are at this moment the subject of a special Governmental
investigation.
What has taken place subsequently is personally known to your
Honor. It was upon your warrant that five of the prisoners who
had escaped were re-arrested ; they are the persons now under
examination. So far, your Honor will not fail to perceive that we
have proved our two first propositions, namely, that Samuel Breck
was robbed, and at the town of St. Albans, in the State of Vermont,
one of the United States of America, and within the jurisdiction of
the United States, and also that this is one of the crimes mentioned
and described in the Treaty.
sn posta ann
mac
=
ee
ee a
282
It is, therefore, only necessary that we should advance one step
further, and show that we have proved our third and last proposi-
tion, that is, that the crime was committed by the prisoners. And
this, I think, we have abundantly established by our having identi-
fied two of them, Spurr and Teavis, as the prisoners who personally
robbed Breck, and the other prisoners as having aided, assisted,
and concerted with them for that purpose. Upon this point I refer
to 1 Wharton, American Criminal Law, page 124, wherein the law
upon this subject is stated in these words : ‘ It is not necessary that
the party should be actually present, an cye or ear witness of the
transaction ; he is in construction of law present, aiding and abet-
ting, if with the intention of giving assistance he be near enough to
afford it, should the occasion require. ‘Thus, if he be outside the
house watching to prevent surprise or the like, whilst his companions
are in the house committing the felony, such constructive presence
is sufficient ; one who keeps guard while others act thus, assisting
them, is in the eyes of the law present and responsible as if actu-
ally present. In case of stealing in a shop, if several are acting in
concert, some in the shop and some out, and the property is stolen
hy one of those in the shop, those who are on the outside are equally
guilty as principals in the offence in stealing in a shop.”
As to what violence is sufficient to constitute robbery, Archbold,
in vol. 3, p. 418, says: ‘¢ The ordinary mode, formerly of present-
ing a pistol is sufficient, so, if the robber assault the party in any
other way under such circumstances of terror, as to cause him to
‘leliver up his money or other property, or if there be a struggle for
the property before it is taken, 1s sufficient.”
If further testimony should be required, it would only be neces-
sary to refer to the voluntary statements of the prisoners, in which
they admit their commission of the crime charged against them,
but, say they, we should stand excused. Why? Because we
informed Breck at the time we robbed him, that we did so in the
name of the Confederacy. ‘Truly a very consoling intimation.
Such, your Honor, are the facts; and such, also, is the law upon
which we rest this branch of our case. The next consideration that
presents itself is: What is the duty of the Judge under these cir-
cumstance? Would your Honor, if this crime had been perpetrated
in this Province, and within the jurisdiction of this Court, by any of
our citizens, with such evidence of its commission as we have laid
before you in support of the present charge, hesitate for a.moment
in committing them for trial? I feel confident you would not ; and
therefore I venture to say, that if the justice which under similar
circumstances we would mete out to ourselves is not denied to the
United States, and I hope it will not, your Honor cannot refuse to
commit the prisoners now before you, to await the further action of
> step
oposi-
ee
identi-
onally
sisted,
I refer
he law
ry that
of the
1 abet-
ugh to
ide the
panions
resence
ssisting
if actu-
cting in
s stolen
equally
rchbold,
present-
yin any
him to
nvgle for
e neces-
n which
st them,
nuse we
o in the
ion.
aw upon
ion that
ese Cir-
netrated
ly any of
ave laid
moment
ot ; and
similar
to the
efuse to
action of
YR5
the Grovernment, upon the demand for their extradition. In sup-
port of this view of the case, I will now cite a few authorities,
which, I believe, are worthy of your Honor’s attention,
THE DUTY OF TILE JUDGE.
Sir Cornwall Lewis puts it thus clearly and explicitly : In order
to render a system of extradition effectual, the amount of proof, and
the formalities required should be as small as is consistent with the
prevention of abuse. The essence of the system is, that confidence
is reposed in the foreign government and in its administration of
criminal law. ‘The assurance of that Government ought to be the
chief guarantee against abuse. If, therefore, it claims any fugi-
tive, through the accredited diplomatic channels, and gives a rea-
sonable proof that there has been a proper investigation by the
officers of police and the functionaries conducting the preliminary
stages of judicature, and that this investigation had led to the con-
clusion that the person in question is enilty of the offence charged
against him, it is desirable that the extradition should take place,
upon proof of identity of the party, and without any full investiga-
tion, such as a magistrate would make for the commitment of a
prisoner in this country. (Lewis on Foreign Jurisdiction, p. 52).
And again at page 53, he says: ‘¢ The recognition of the criminal
law of a foreign State, and the confidence in its regular and just
administration which is implied in a system of extradition thus car-
ried into effect, is paralleled by the established practice of this and
other countries with respect to the civil law.”
In fact the rule thus clearly stated has been followed in practice
whenever questions under the Treaty arose.
In the Anderson case, Chief Justice Draper, with reference to
the case of a party accused of murder, seeking to justify it, obser-
ved :—If there is a question of fact to be tried, I apprehend he
must be surrendered, as such « -juestion can only be tried in the
country where the fact arose. (t. C. C. P. R. Nos. Land 2, Vol.
II, page 60.)
In the Chesapeake case the same question was incidentally dis-
posed of. The Counsel for the prisoners was proceeding to com-
ment on the evidence of authority from the Confederate Govern-
ment, when Mr. Justice Ritchie observed: “* Assuming, as you
must do, at this stage of your argument, the correctness of the
proceedings against the prisoners, and the Magistrate’s Jurisdiction
of the offence, do not these questions fall within the province of the
Superior Court on the trial of the prisoners? Is it not the Magis-
trate’s duty now merely to see if a preliminary case is made out ?
I think we must act in this case just as if it was an offence commit-
ted here. ‘The question is, would I un the evidence commit for
————
ee
ee -
ie - te +~
—S
a ee Se eres
ae a
anes pamper - —
SS
Sn a A
=
(tess tars
—
——~
ae aS ae
as
Some rae
SS
FB
“SF
A ee
ote
ae te
ye aad
2x4
trial in this country ¢ Tf so, must LE not commit the parties for
extradition 7”
‘T'o this the prisoner's Comnsel replied :—In Anderson's case §
prima facie i was made out, but the prisoner was discharged,
and so in U.S. vs. Palmer, + Curtis, page 314, Parker is found
in command of the Retribution, and Braine and Parry acting unde:
him, (Ritchie, J.) I think these questions are proper for a Jury,
and not for the Magistrate. [Lis duty is simply to deal with this
case as a Magistré ite would deal with an offence to be tried in this
country. (€ ‘hesapeake ¢ case, Report, page 35.) The case of Metz-
ger reported in the 5th vol. New Legal Observer, maintains the
same doctrine. ‘The Magistrate must commit when there is just
ground for suspicion.
I will now, said Mr. Devlin, call your Tlonor’s attention to the
case of Joseph Fisher (to be found in Stuart’s Repts., p. 245,)
decided in our own courts. I*isher was accused of having stolen
#638 in the state of Vermont, one of the United States of America.
Immediately after the robbery, he fled to Canada, hoping, like the
prisoners now before the court, to find a safe asylum here. Fisher
was, however, not permitted to enjoy his ill-gotten booty in peace.
An application was made for his extradition, although, be it re-
membered, there was at the time no Treaty as there is now for the
surrender of fugitives from justice, in existence. The application
was founded upon what is called the ‘* comity of nations,” and was
heard before Chief Justice Reid. That eminent Judge, in dispo-
sing of the question, said :—‘ This right of surrender is founded
on the principle, that he who has caused an injury, is bound to re-
pair it, and he who has infringed the laws of any country is lable
to the punishment inflicted by those laws; if we screen him from
that punisment, we become parties to his crime, we excite retalia-
tion; we encourage criminals to take refuge among us. We do
that asa nation which as individuals, it would be dishonorable,
nay, criminal to do. If, on the contrary, we deliver up the accu-
sed to the offended nation, we only fulfil our part of the social com-
pact, which directs that the rights of nations as well as individuals
should be respected, and a good understanding maintained between
them; and this is the more requisite among neighboring States,
on account of the daily communications which must necessaily sub-
sist between them.
A modern writer (Instit. du Droit des Gens, &e., par le Gerard
de Rayneval, liv. 2, ch. 3, ss. 4, p. 184), on the Laws of Nations,
says :— La communication journali¢re entre deux pais limitrophes
est inévitable, et elle doit étre d’autant plus favorisée par leurs
souvernemens respectifs, qu elle est naturellement fondées sur des
hesoins réciproques et quelle donne par la, lieu a des changes,
ies for
case a
arged,
found
under
} J ury,
th this
1 in this
f Metz-
ins the
is just
1 to the
945,)
o stolen
Lmerica.
like the
Fisher
n peace.
be it re-
v for the
plication
and was
in dispo-
founded
nd to re-
is liable
him from
5 retalia-
We do
bnorable,
he accu-
ial com-
dividuals
between
States,
Rail sub-
Gerard
Nations,
itrophes
ar leurs
3 sur des
changes,
2s,)
(ailleurs elle Gtablit entre Jes habitanis respectits des liaisons, et
une sorte de confianee qui assurent leur tranquillité, et contribuent
i leur jouissances.”’
Indeed, said the learned Chief Justice Reid, were we to take
into account the opinions of modern writers on International law,
we would be still more strongly fortified im the principle we here
hold, and we sce no reason why those opimions should be re-
jected. At all events, said the Judge, we may safely say, that
ai the present day the world las become enlightened “in the aci-
ence of government as well as in all the other departments of
human knowledge, far beyond what was known to those writers
who lived centuries ago; and therefore that the maxinns of govern-
ment of the present day may be considered at least as well “under-
stood, and better adapted to the rights and feclings of mankind,
than they could have been in the days of Grotius and Puffendorf,
What, said this eminent Judge, we have to determine is, whether
there was legal ground for the arrest and surrender of the prisoner
and we hold there was. ‘The prisoner, said he, comes before us in
2 very different character from that of a subject to whom protec-
tion is due as a matter of right: he is an alien, to whom protection
is not due, if the King sees fit to withhold it. The observation of
Judge Tilghman may well be applied to him “ that he cannot Soree
himself into the Niny’s territories, and say, you shall protect me.
[t is held (sce Chitty on Prerog., p. 49; 1 Black, Com., 259-260),
that alien friends may lawfully come into the country without any
license or protection from the Crown; though it seems that the
Crown, even at common law, and by the law of nations, possesses a
right to order them out of the country, or prevent them from com-
ing into it, whenever His Majesty thinks fit: and the reason given
18 ‘(sce 1 ‘Chitty, Crim. Law, 181 and 148, note [a]), that it is
inseparable from the governing power in any country, that it shall
be able to take precautions ‘against foreigners residing in such
country, and particularly in a country where foreigners | are only
amenable to the ordinary laws. The prisoner, said the Judge,
came into this Province under suspicious circumstances, charged
with felony ; as an alien his conduct did not merit protection—
unless he had come with a fairer character—and he ought not to
be surprised, nor to complain that Ilis Majesty’s Government
should direct him to be taken back to that country whence he
came.
Applying, said Mr. Devlin, this Judgment to the case in ques-
tion, may we not say that the prisoners now before this Court
should not complain, if you, one of Her Majesty’s Judges, should
hold that they should be taken back to that country whose laws
they so shamefully violated. ‘That having outraged the laws of
IRG
humanity as they, the prisoners, did at St. Albans, they have not
the right to say, We will force ourselves into your se Yanadian terri-
tory ; “and though our guilt should involve you in war, we will still
persist in dem: inding that you should assume all the responsibilities
of our crimes, and, cost what. it may, that you should shield us
from the penalty dne to our offences. 'Ihis, said the learned
Counsel, is the ridiculous pretension unblushingly set up on behalf
of the prisoners, and boldly urged upon the attention of the Court.
The next ease to which he, Mr. Devlin, would call his Honor’s
attention, was the well- known case of Muller, whose extradition
was demanded by the British Government upon a charge of mur-
der. The application for his surrender was investigated in the
city of New York, hetore Mr. Commissioner Newton. In render-
ing judgment, her learned Commissioner made the following perti-
nent remarks, which will be found at pp. 28 and 30. of the pub-
lished report of the proceedings had in that case :—
“The evidence is such as would plainly require the commitment
of Muller for trial if the offence had been committed here, anil it
results that a certificate leading to his extradition, that the case
may undergo an investigation in England, should be granted.”
And on this the Commissioner, in the following language, applied
the law clearly applicable to that and every other ease arising under
the Treaty: ** Having heard and ¢ “arefully considered the remarks
made by the council for the defence Iam at a loss to sec, after
having carefully considered the testimony, and weighing it in my
mind, “that there is not sufficient evidence for me, sitting here simply
as a ‘magistrate, and the duty for me being simply to determine,
not whether the man is guilty or not, but whether there is sufficient
evidence to require that he may be committed, in order to afford
an opportunity at the place where the crime was committed, of
proving his guilt or innocence. It is not necessary for me to say
whether I woul 1 absolutely convict the man, and sentence him to
be hung, were that even in my province, but the duty [ have to
perform is simply this: first, has there been a crime committed ?
[f committed, is there probable cause from the evidence adduced
to say that the accused is the party who has committed the crime?
Now it appears to my mind clear, that looking at it in that liight—
in the light of probable cause,—it is very plain that there is such
cause. 1 do not desire to sit in judgment on this man, but 7 wish
it were in my power to discover any evidence in the case wuereby
[ could withhold the certificate ; but I am bound to say that the
combined circumstances, to my mind appear so clear and so distinct,
that upon the question of probable cause I cannot have any doubt.”
In the still more recent case for murder on the high seas, on
board the British brig “ Raymond,” in which the prisoner desired
» not
terri-
| still
ilities
ld us
arned
behalf
Court.
onor’s
udition
f mur-
in the
ender-
r pe rti-
6 pub-
ritment
anil it
he case
anted.”
applied
.g under
remarks
e, after
tin my
e simply
ermine,
ufficient
o afford
tted, of
to say
him to
ave to
mitted ?
dduced
crime ?
light—
is ” such
t ¥ wish
wuereby
hat the
istinct,
doubt.”
seas, on
desired
287
to show by evidence that the act was justifiable, the same judge
applied the like clear principle, a3 follows :
evidence of nee could be legall
ever, under the Treaty I have greé at fi
** Even admitting that
received (of which, how-
yubt,) it is not for me to
determine what as it might or might not have upon the mind of
a jury on a final hearing or trial for murder. Under the ‘Treaty I
am only to determine the question of probable cause. The simple
question here to be decided is, whether there is sufficient probable
cause to justify his return for trial to the country within whose
jurisdiction the crime is charged to have heen committed.”
In the case of Ternan (Boston Monthly L. R. vol. 26, p. 510)
and others for piracy alleged to have been committed in seizing
steamer “J. L. Gerrity,” in the month of November, 1863, the
judges of the Queen’s Bench in England, though differing in opinion
on the question whether piracy, gure gentiwn, was within the
Treaty, did not controvert the same principle laid down by Lord
Chief Justice Cockburn: ** No doubt, prima facie, the act of seiz-
ing the vessel, saying at the same time that it is seize for the
Confederates, may raise a presumption of such an intention; but
then all the circumstances must be looked at to see if the act was
really done piratically, which would be for the jury; and [ cannot
say that the magistrate was not justified in committing the prisoner
for trial.
And Mr. Justice Crompton observed, ** Upon the latter point I
quite concur with my Lord because it is not for us to weigh the
effect of the evidence which is for the jury ; and all we can consider
is whether there was enough to justify a committal for tri: ly and
agree with my Lord that we cannot say that there was not.’
“Tt is unnecessar y to multiply authorities on a point so clearly
defined by the Treaty, but the following observations of Attorney-
General Cushing, (opinions of Atty’s. ‘General, vol. 4, p. 204 and
211,) in advising the Government of tie United States in a case
where the prisoner arrested for extra:lition on a charge of murder
desired to prove insanity before the committing magistrate, are sp
pertinent that they are quoted : * The evidence upon the exhibi-
tion of which this (¢. e. delivery up to justice) is to be done, is such
as, according to the laws of the place where the fugitive or person
charged shall be found, would justify his apprehension and commit-
ment for trial if the crime or offence had been there committed.”
Had the treaty conferred upon the magistrate—if it could have
been made competent to such an object—the power of trying the
person charged for an offence committed within a foreign jurisdic-
tion, and of ‘punishing i in case of ascertained guilt, the inquiry might
have presented itself in a different aspect. But the stipulations
under examination aim at no such end, but are confined to the
ns
ee
288
ascertainment of facts which can weigh nothing in any consequent
and purely judicial investigation of the charge.” —Jbid., p. 211.
These opinions and decisions are, I think, well worthy the atten-
tion of this Court, as showing that upon the establishment of a
prima facie case of guilt, the extradition of the accused should be
ordered, leaving him to plead matters of justification before the
Court and Jury invested with jurisdiction to try the merits of the
offence.
Believing that sufficient notice has been taken of this point, I will
will now proceed to show by authority, which cannot be controverted,
that the surrender of fugitives from justice is a national obligation.
That it is the law and usage of nations, resting on the plainest
principles of justice and public utility, to deliver up offenders
charged with felony and other high crimes, and fleeing from the
country in which the crime was commitied, into a foreign and
friendly jurisdiction.
In the matter of Washburn, (Johnson’s Chan. Repts. + vol.),
arrested in ‘Troy upon a charge of having stoien $350 in Montreal,
the Chancellor who was applied to for his discharge, said: Whena
case of this kind occurs, it becomes the duty of the Magistrate, on
due proof of the fact, to commit the fugitive, to the end that a rea-
sonable time may be atorded for the Government here to deliver
him up, or for the foreign Government to make the requisite appli-
cation to the proper authorities here for his surrender. ‘This doc-
trine is supported cqually by reason and authority.
Vattel observes (B. 2, c. 6,8. 76), that to deliver up one’s own
subjects to the offended State, there to receive justice, is pretty
generally observed, with respect to great crimes, or such as are
equally contrary to the laws and safety of all nations. Assassins,
incendiaries, and robbers, he says are seized everywhere, at the
desire of the Sovereign in the place where the crime was com-
mitted, and delivered up to his justice. ‘The sovereign who refuses
to deliver up the guilty, renders himself, in some measure, an
accomplice in the injury, and becomes reponsible for it. Professor
Martens, also in his Summary of the Law of Nations, p. 107,
says, that according to modern custom, a criminal is frequently sent
back to the place where the crime was committed, on the request
of a power who offers to do the like service, and that we often see
instances of this.
Grotius, who is of still higher authority, declares: (B. 2, cap. 21,
sec. 38, 4, 5), that the State is accountable for the crimes of its
subjects committed abread, if it affords them protection; and,
therefore, the State where the offender resides, or has fled to,
ought, upon application and examination of the case, either to
punish him according to his demerit, or to deliver him up to the
foreign State.
quent
11.
atten-
t of a
ald be
re the
of the
, 1 will
verted,
gation.
plainest
tenders
om the
on and
4 yol.),
ontreal,
When a
rate, on
ut a rea-
» deliver
ite appl
[his doc-
21e°8 OWN
3 pretty
1 as are
gsassins,
, at the
as com-
b refuses
Bure, an
Professor
p- 107,
itly sent
request
often see
cap. 21,
bs of its
; and,
fled to,
ither to
» to the
289
Heineccius, in his commentary on these passages (Preelec. in
Grot. h. t.), admits that the surrender of a citizen, who commits a
crime in a foreign country, is according to the law of nations ; and
he says further, that it is to be deduced from the principles of
natural law. We ought either to punish the offender ourselves, or
deliver him up to the foreign government for punishment. So Bur-
lamaqui, (part 4, c. 8, ss. 23 to 29), follows the opinion of Grotius,
and maintains that the duty of delivering up fugitives from justice
is Of common and indispensable obligation.
In the matter of Washburn previously referred to, the Chancel-
lor said: ‘It has been suggested that theft is not a felony of such
an atrocious and mischievous nature, as to fall within the usage of
nations on this point. But the crimes which belong to the cogni-
zance of the law of nations are not specially defined; and those
which strike deeply at the rights of property, and are inconsistent
with the safety and harmony of commercial intercourse, come within
the mischief to be prevented, and within the necessity, as well as
the equity, of the remedy. ‘They are equally invasions of the
rights of property, and incompatible with the ends of civil society.
Considering the great and constant intercourse between this State
and the Provinces of Canada, and the entire facility of passing
from one dominion to the other; it would be impossible for the
inhabitants on the respective frontiers to live in security, or to
maintain a friendly intercourse with each other, if thieves could
escape with impunity, merely by crossing the territorial‘ line. The
policy of the nation and the good sense of individuals would equally
condemn such a dangerous doctrine.”
In Kents commentaries, (Vol. 1, p. 36,) PAdllimore, (Vols. 1
and 2,) Zabriskie’s New Jersey Reports, (Vol. 3, p. 877,) Ruther-
forth, (B. 2, ¢. 9, s. 12,) the same doctrines are enunciated as
forming part of the law of nations.
Here I will leave this branch of the case, and here I might leave
it altogether. Because the pretended belligerency claimed for
the prisoners, and boldly set up as a justification of their crimes,
involves a question which the reading of the foregoing authorities
clearly shows, if it has any existence, (and I deny that it has in
the present case,) can only be determined at the time of the trial
of the prisoners, and not upon a preliminary investigation of this
kind. But, as my learned friends have opened before us the wide
field of international law, and defiantly challenged us to enter, I
will not shrink from a consideration of the question even from this
new and foreign point of view, much as it is, in my opinion, out of
place in the present enquiry. Upon this point, the arguments of
the learned counsel lead me to suppose that they view the acts of
the prisoners at St. Albans in the light of belligerent acts. And
T
—_
———
SSeS
Se
2 £ sore =z,
Fins yes
ne
i
ag mama te egg og
290
in support of this pretension they have cited, with a show of appa--
rent seriousness, certain writers, to prove that, as what their clients
did was, from their point of view, done by virtue of previously
acquired belligerent rights, therefor? the crimes committed by the
prisoners at St, Albans cannot be made the subjects of enquiry
before the tribunals of a neutral country. But the learned gen-
tlemen must be reminded, that before they can invoke the opera-
tion of international law to justify, excuse, or palliate the outrages
of which they are accused, they must have proved the existence of
a certain state of facts to which their law can be applied. As, for
4 instance, that their clients were duly commissioned by recognised
4) military authority, to commit the act complained of. That the cir-
! cumstances under which it was undertaken and executed, exempted
them from criminal responsibility, and above all, even supposing
that the prisoners were so authorized, that they have not forfeited
their belligerent character, by commencing their attack from a
neutral and friendly territory.
In the absence of such proof, it is perfectly manifest that their
International law can have no application; and for this very goo
reason, that without it there is nothing of record to which the inge-
nuity of the most skilful pleader can possibly make the application.
I will, therefore, as next in order, examine the evidence, such as
it is, submitted by the prisoners upon these points, all of which [ ;
undertake to demonstrate they have signally failed to prove.
The defence of the prisoners rests upon the pretended commis-
sion produced by Bennett H. Young, which it has been strenuously
urged entitles him to the recognition of an officer in the service of
| the so-called Confederate States. And further, that under this
commission, and certain mysterious instructions communicated to
him by one C. C. Clay, Young, and his accomplices were fully
licensed to commit all kinds of depredations at St. Albans, or else-
where in the United States.
This being the modest pretension of the prisoners’ Counsel, we
will now see how far it is borne out by reference to the commission
itself, which is in these words :——
Lieutenant Youny'’s Commission.
CONFEDERATE STATES OF AMERICA, }
War DEPARTMENT,
Richmond, June 16, 1864, j
Sir,-—You are hereby informed that the President has appointed
you First Lieutenant, under the act 121, approved February 17th,
1864, in the Provisional Army, in the service of the Confederate
ppa-
ents
uusly
r the
yuiry
gen-
pera-
rages
ice of
Ss, for
mised
1@ Clr-
mpted
osing
rfeited
rom 4
it their
y goo
e nge-
ication.
such as
vhich L
ommis-
nuousl ¥
rvice of
Her this
ated to
-e fully
or else-
sel, we
|
mission
pointed
'y 17 th 8
ederate
291
States, to rank as such from the 16th day of June, 1864. Should
the Senate, at their neat sessivn, ADVISE and CONSENT
THERETO, you will be commissioned accordingly.
Immediately on receipt thereof, please to communicate to this
Department, through the Adjutant and Inspector General’s Office,
your acceptance or non-acceptance of said appointment, and, with
your letter of acceptance, return to the Adjutant and Inspector
General the oath herewith enclosed, properly filled up, subscribed,
and attested, reporting at the same time your age, residence, when
appointed, and the State in which you were born.
Should vou accept, you will report for duty to
(Signed) JAS. A. SEDDON, Xccretary of War.
Lieut. Bennet HT. Young &e., &e., PLAS.
This, your Honor, is the document which you are asked to regard
23 @ commission, and to accept as an authority for the perpetration
ef the crimes committed by the prisoners at St. Albans. A modest
request surely, considering that upon the face of this same piece of -
paper, it appears that a commission will only be given, provided thy
Senate at their neat session advise and consent thereto. But there
has been no attempt to prove that the Senate ever did advise or
consent thereto, nor is there a particle of evidence to show that
Young ever communicated his willingness, verbally or in writing,
to accept of such appointment, or that he ever took the required
oath. ‘To get rid of these difficulties, witnesses have been examined
with the view of proving that it was the custom of the Confederacy
to issue commissions in this conditional form, to be ratified after-
wards when the Senate met. Well, if sucha practice had prevailed.
it might, perhaps, have answerd the purpose intended. But surely
the matter assumes an entirely different aspect when the holder of
such a document leaves the limits of the so-called Confederacy, anit
goes abroad to rob and murder by virtue of such authority. The
pretence that this piece of paper is sufficient to justify the crimes
~ committed by the prisoners at St. Albans, is so monstrous as to
excite astonishment at its having been urged upon the attention of
the Court. Indeed, it is well calculated to induce the belief that
we are trifling with our Treaty obligations.
It has, however, been said on behalf of the accused, that Young
received instructions subsequent to his pretended commission which
supply the authority of the Senate and establish his military status.
These instructions [ will now read word for word as I find them in
the evidence.
4
292
Confederate States of America,
War Department,
Richmond, Va., June 16th, 1864.
To Lieut. Bennet H. Youna,
Lieut.,—You have been appointed temporarily First Lieut. in the
Provisional Army for special service. You will proceed without
delay by the route already indicated to you, and report to C. C.
Clay, jun., for orders. You will collect together such Confederate
soldiers who have escaped from the enemy, not exceeding twenty
in number that you may deem suitable for that purpose, and ex-
ecute such enterprises as may be indicated to you. You will take
care to organize within the territory of the enemy, to violate none
of the neutrality laws, and obey implicitly his instructions. “You
and your men will receive transportation and customary rations,
and clothing or commutation therefor.
JAMES A. SEDDON,
Sec. of War.
CONFEDERATE STATES OF AMERICA,
War Department.
Richmond, Va., June 16th, 1864.
To Lizvt. Bennet H. Youna,
Lieut..—You have been appointed temporarily 1st. Lieut. in the
Provisional Army for special service.
You will proceed without delay to the British Provinces, where
q you will report to Messrs. Thompson and Clay for instructions.
You will, under their direction, collect together such Confede-
rate soldiers who have escaped from the enemy, not exceeding
twenty in number, as you may deem suitable for the purpose, and
will execute such enterprises as may be entrusted to you. You
will take care to commit no violation of the local law, and to obey
implicitly their instructions. You and your men will receive from
these gentlemen, transportation, and the customary rations and
clothing, or commutation therefor.
JAMES A. SEDDON, Sec. of War.
Va., June 16th.
CoNFEDERATE STATES OF AMERICA,
War DEPARTMENT,
Richmond, Va., June 16th, 1864.
Lieut. B. H. Young is hereby authorized to organize for special
service a Company, not to exceed twenty in number, from those who
belong to the service and are at the time beyond the Confederate
States.
BRICA,
1864.
in the
where
rons.
pnfede-
eeding
se, and
You
o obey
e from
ns and
f War.
Ay !
4,
special
ose who
ederate
293
They will be entitled to their pay, rations, clothing, and trans-
portation, but no other compensation for any service which they
may be called upon to render.
The organisation will be under the control of this Department,
and liable to be disbanded at its pleasure, and the members returned
to their respective companies.
JAMES A. SEDDON, Seeretary of War.
IIere, your Honor, we have no less than three different sets of
instructions, emanating, we are told, from the Confederate Secre-
tary of War, and each of them upon the 16th of June. In the first
instructions given, Young is ordered to proceed without delay by
the route already indicated to him, and to report to C. C. Clay,
Jun., for orders. In the second, the same Bennett H. Young is
ordered to proceed without delay to the British Provinces, and
there report himself to Messrs. Thompson and Clay for instruction.
While in the third set of instructions he is informed, that the
organization will be made under the control of the War Department.
Now, how are we for the purposes of this enquiry, to reconcile
these conflicting orders? Can we seriously believe that Jas. A.
Seddon, supposing him to have been a sane man upon the 16th of
June last, ever subscribed his name to orders so ridiculously con-
tradictory to each other? For my part, I incline to the belief, that
he did not, and for this reason, that I am strongly impressed. with
the conviction that the pretended commission and instructions have
been fabricated to meet the exigency of the prisoners’ position.
But whether I am right in this conjecture or not matters little, as
neither the so-called commission nor its accompanying instructions,
convey any authority to the prisoners to engage in acts of murder
or robbery. Indeed, so true is this, that we find their Counsel re-
lying for a justification of their crimes, not upon the alleged autho-
rity of James A. Seddon, but upon the order of the mysterious C.C.
Clay, whom nobody in Canada, except the prisoners and their
Counsel, seems to have seen, known, or cared about. Remember-
ing, however, that C. C. Clay, Jun., has figured conspicuously in
this investigation; that it is he, whom we are told, planned, autho-
rised, and directed the execution of the St. Albans raid, that it was
his command the prisoners obeyed, and stated they were bound to
obey, I feel myself called upon to examine his authority to sanction
the crimes committed at St. Albans, and to issue military orders
from Canada.
Here is his letter to Young :—
294
PAPER P.
Mem. for Lieut. Bennet Young, C. S. A.
Your report of your doings, under your instructions of 16th Juno
last from the Secretary of War, covering the list of twenty Confede-
rate soldiers who are escaped prisoners, collected and enrolled by you
under those instructions, is received.
Your suggestions for a raid upon accessible towns in Vermont,
commencing with St. Albans, is approved, and you are authorised
and required to act 7 conformity with that suggestion.
October 6, 1864.
C. C. CLAY, JUN.
Commissioner, C. 5. A.
Now, I think it may be fairly asked, who is this C. C. Clay, who
has arrogated to himself such extraordinary powers in a neutral
territory 7 George N. Sanders, in his evidence, says: I know
Mr. C.C. Clay, w vhose name is subscribed to document P. He was
then exercising the authority of a Confederate agent, claiming full
ambassadorial powers, as well civil as military. I had several
conversations with Mr. Clay about the St. Albans raid. He informed
me that he directed the raid, and gave the order for it—the St.
Albans raid—and Bennett H. Young was instructed by him to carry
it out. Mr. Clay told me about the eighth day of December last, a
few days before he left, that he w ould leave ‘such a letter as the
paper writing marked P, and which I infer had not been written up
to that time. ‘The letter which he said he would write on that oc-
easion was a letter assuming all the responsibility of the St. Albans
raid, for which he was responsible.
Now, if we are to believe Sanders, and I know of no reason why
we should disbelieve his testimony upon this point, the prisoners
had only the verbal authority of C. C. Clay, for their doings at St.
Albans, upon the 19th of October. The letter, or memorandum,
as it is called, bearing date 6th October last, was undoubtedly written
after the prisoners’ visit to St. Albans, and in the month of
December, a day or two before C. C. Clay withdrew himself from
Canada. But this, again, is of little consequence, for it is to be hoped
that the assumed authority in Canada of a soz-disant Southern rebel
avent, will not be permitted to over-ride our own laws, to nullify our
treaties, and to imperil our friendly relations with the United States.
Besides, Clay, of all others is least entitled at our hands to friendly
recognition. It is in evidence, that from the moment he set foot
in this Province, he disregarded our neutrality laws, which, so long
as he claimed an asylum in Canada, were as binding upon him as
upon us. And Clay knew this, as appears by the evidence of Wm.
M. Cleary, who says: ‘ The reason why at an earlier stage of this
une
edc-
| you
ont,
ised
. A.
, who
utral
know
2 was
x full
veral
yrmed
ie St.
carry
ast, a
ns the
en up
at oc-
\ bans
m why
Boners
at St.
dum,
ritten
th of
r from
hoped
rebel
fy our
states.
endly
t foot
b long
im as
Wn.
Df this
295
enquiry I did not produce this paper, ordermg Young to proceed to
the British Provinces, to report himself to Messrs. Thompson and
Clay for instructions, was, that after a consultation I had with the
Counsel for the defence, it was decided not to produce it, because it
night involve Clay in a breach of the neutrality laws.”’
Another paper, omitting the words proceed to the British Pro-
vences, was, therefore, substituted ; a proceeding, which shows the
dexterity of the prisoners’ friends in manufacturing evidence to meet
the requirements of their case. Is it not, however, strange, that
Clay, who (according to Mr. Sanders) claims to exercise in
Canada full ambassadorial powers, civil as well as military, has not
made his appearance at any time during this investigation? As-
suredly, if he is clothed, as Sanders tells us, with such high power and
authority, his evidence might have been of some importance to the
prisoners. At any rate, it would have been interesting to very
many, no doubt, to be afforded an opportunity of secing the first
ambassador Canada could ever boast of having within her borders.
But the fact is, your Honor, Clay dared not appear. And as a
proof of this, we find, that in order to screen his own guilt, and to
save himself from punishment, he has fled from Canada, taking with
him, if report be true, and I doubt it not, much more than his share of
the moneys stolen by the prisonrs from the people of St. Albans. And
yet, it is the authority of this conspirator against the laws of the
United States, against the peace, dignity and welfare of Canada ;
he, who had not even the courage to stand by his friends and accom-
plices in their hour of trial, that is set up as ajustification of the St.
Albans outrages, and for which judicial recognition is demanded
from this Court. I believe, however, that your Honor will not
sanction such a monstrous proposition for a moment—one utterly
abhorrent to every idea of justice, and one which, I hesitate not to
say, if entertained by the people of this Province, will, I verily
believe, be regarded, and justly so, by the United States as tanta-
mount to a declaration of war against them. I say justly so, Sir,
because if you discharge the prisoners, it must be that you regard
them as belligerents, and the crimes imputed to them at St. Albans,
as so many acts of legitimate warfare. Now, considering the cir-
cumstances under which this robbing expedition was planned and
executed—that it was concocted in Canada, and started from Canada,
and that it has no higher authority to rest upon than the memoran-
dum of C. C. Clay, can we be surprised that our recognition and
judicial sanction of such an atrocious outrage should excite the
indignation of the people of the United States, and induce them to
look upon us as their enemies ?
But before I leave this point, let me remind your Honor, that
Mr. Davis, the President of the so-called Confederate States, has
or i pa
= Praca s. Sao :
2 Ps
Se a
recep sae serenen a -—ap eeenrentne
~ we
ri sates eS iy tage Se TS
AS eS
re -
: 3
Sate i ea oe
not to this hour, acknowledged the acts of the prisoners, or in any
296
way assumed the responsibility of what they did at St. Albans. In
support of this statement, I refer to the evidence of the Revd.
Stephen F. Cameron, the messenger dispatched to Richmond, to
obtain from there a ratification of the prisoners, acts, or such other
evidence as would prove that their raid was directed, sanctioned,
and authorized by the Confederate government, and that they,
the prisoners, were duly commissioned officers and soldiers of the
Confederacy. Your Honor will remember how often and how ear-
nestly my learned friends protested against being called upon for
the defence of their clients, until they had an opportunity of com-
munication with Richmond. But why this necessity for communi-
cating with Richmond if the pretended commission and written me-
morandum of C. C. Clay were, at the time of their production by the
prisoners, as we are told they were, sufficient to prove their military
status? The fact is, Sir, my learned friends knew then, as they
know now, if they would but make the admission, that the prisoners
had no authority whatever to justify their crimes, or to stay the
demand for their extradition. And hence their frequent appeals
for delay, to communicate with the magistracy at Richmond. Well,
that delay was accorded to them, and now that the messenger has
returned, let us see what he has brought to aid the cause of the
prisoners, I find, Sir, that he has laid before this Court as the result
of his perilous journey, three copies of three muster rolls of three
Companies, in which the names of the prisoners have been very badly
written indeed ; and so far back it would seem as two years ago.
Now, your Honor, this is not the kind of evidence which the prisoners
in their affidavits fyled in support of their application for delay,
stated they needed for their defence, and could procure upon
communication with Richmond. The truth is, they had hoped that
the Confederate President, if appealed to, might be induced to avow
their acts. But, although I would not attach the least importance
to his avowal, even if it had been made, it is still worthy of remark,
that he has withheld it. And the reason, said Mr. Cameron in his
evidence, is, “ That his General Order in the Burley case had been
disregarded by the Judges of Upper Canada. President Davis, ob-
served the witness, seemed piqued and indignant of the facts.”
This, your Honor is the excuse offered for the reticence of Mr.
Davis, for his unwillingness to hold himself or his Government,
such as it is, responsible for the outrages committed at St. Albans.
Will you then, seeing that the Confederate authorities have pointedly
refused to acknowledge the Military status claimed for the prisoners,
supply the want by the substitution of your sanction for their autho-
rity ? I earnestly hope you will not place yourself in such an unen-
viable position, a position which I take the liberty of saying would
any
. In
evd.
1, to
ther
ned,
they,
f the
ear-
n for
com-
nuni-
a me-
y the
itary
| they
oners
y the
ypeals
Well,
er has
of the
result
three
badly
b ago.
boners
elay,
upon
d that
avow
tance
mark,
in his
l been
is, ob-
nets.”
| Mr.
ment,
bans.
tedly
pners,
hutho-
unen-
woulck
297
be dishonoring to the high character of the judiciary, and ex-
tremely prejudicial to the best interests of the people of Canada.
With these remarks upon this branch of the question at issue, I
will now, in reply to my learned friends, proceed to consider our
neutral obligations to the United States, and with the further object
of showing that is not only our duty, but our interest, if we wish to
secure to ourselves a continuance of the blessings of peace, to
observe a strict impartiality in the pending conflict, and not to
favor one of the contending parties to the injury of the other.
DUTY OF NEUTRALS.
Chief Justice Jay, in his charge to the Grand Jury, in the case
of Wenfield, (Reported in Wharton's Rept. of State Trials in
U. S.) accused of a violation of the neutrality laws of the United
States, made the following sensible remarks, which I quote, as
being in my opinion precisely applicable to our state at this
moment. ‘That eminent Judge said :—‘ By the laws of nations,
the United States, as a neutral power, are bound to observe the
line of conduct indicated by the proclamation of the President
towards all the belligerent powers, and that although we may have
no treaties with them. Surely (said he) no engagements can be
more wise and virtuous than those whose direct object is to maintain
peace and to preserve large portions of the human race from the
complicated evils incident to war. While the people of other
nations do no violence or injustice to our citizens, it would certainly
be criminal and wicked in our citizens, for the sake of plunder, to
lo violence and injustice to any of them.
If you let loose the reins of your subjects, against foreign nations,
these will behave in the same manner to you, and instead of that
friendly intercourse which nature has established between all men,
we should see nothing but one nation robbing another. The respect
which every nation owes to itself imposes a duty on its Government,
to cause all its laws to be respected and obeyed, and that not only
by its proper citizens, but also by those strangers who may visit and
occasionally reside within its territories. ‘There is no principle
better established than that all strangers admitted into a country
are, during their residence, subject to the laws of it ; hence it follows
that the subjects of belligerent powers are bound, while in the
country, to respect the neutrality of it.”
Did Clay do this? Did the prisoners do it? St. Albans answers
no, and well it may so answer.
‘‘ While” said the learned Judge, “‘ we contemplate with anxiety
and regret the desolation and distress which a war so general
(war was then being carried on between Austria, Prussia, Sardinia,
Great Britain and the United Netherlands of the one part, and
ee
f PaO, — =
aon He ee
=
a
i 2 SSE Dae ae ~
298
Krance of the other) and so inflamed will probably spread over
‘nore than one country, let us with becoming gratitude wisely
estimate and cherish the peace, liberty, and safety with which the
Divine Providence has been pleased so liberally to bless us. Self-
preservation is a primary duty of a state as well as of an individual.
‘l'o love and to deserve an honest fame, is another duty of a state
as well as of aman. ‘Toa state as well as to a man, reputation is
a valuable and an agreeable possession. But with war and rumors
of war, our cars, in this imperfect state of things, are still assailed.
++ Into this unnatural state ought a nation to suffer herself to be
drawn without her own act, or the act of him, or them, to whom for
the purpose she has delegated her power ?”’
‘+ Into this unnatural state should a nation suffer herself to be drawn
hy the unauthorized, nay, by the unlicensed conduct of her
citizens
** TTumanity and reason, says Vuttel, say no.”
In the case of Talbot vs. Janson, for a breach of neutrality law,
(1 Curtis’ Itepts. of Decision in the Sup. C. of the U. 8., p. 154,)
Judge Patterson said :--** The United States are neutral in the
present war; they take no part in it; remain common friends tv
all the belligerent powers, not favoring the arms of one to the detri-
ment of the others. An exact impartiality must mark their conduct
towards the parties at war, for if they favor, they favor one to the injury
of the other. It would be a departure from pacific principles, and
indicative of a hostile disposition. It would be a fraudulent neu-
trality.”” At (p. 136) he says :—‘* The principle deducible from
the law of nations is plain; you shall not make use of our neutral
arm to capture vessels of youR enemies, but of our friends. If
you do, and bring the captured vessels within our jurisdiction,
restitution will be awarded. Doth the powers in the present
instance, though enemies to cach other, are friends of the United
States, whose citizens ought to preserve a neutral attitude, and
should not assist either party in their hostile operation.”
Phillimare (V. 1, 2, p. 189) says: “ A Rebellion or a civil
commotion, it may happen, agitates a nation ; while the authorities
are engaged in repressing it, bands of rebels pass the frontier,
shelter themselves under the protection of the coterminous State,
and from thence, with restored strength and fresh appliances, renew
their invasions from the State in which they have escaped. The
invaded States remonstrate. ‘Ihe remonstrance, whether from
favor to the rebels, or feebleness of the executive, is unheeded, or
at least, the evil complained of, remains unredressed.
In this state of things, the invaded State is warranted by inter-
national law in crossing the frontier, and in taking the necessary
means for her safety, whether these be the capture or dispersion of
ver
ely
the
Self-
ual.
tate
yn 13
mors
iled.
o be
n for
raw
her
r law,
154,)
n the
nds tv
detri-
nduct
injury
s, and
t neu-
from
eutral
3. If
iction,
resent
Jnited
and
)
civil
orities
ontier,
State,
renew
The
from
ed, or
inter-
essary
pion of
299
the rebels, or the destruction of their stronghold, as the exigencies
cf the case may fairly requir e.
In (3rd J hillimor é, p. 89,) it is laid down, that the conduct of
« State which allowed, through indifference or gross remissness, its
subjects to invade Nie rights of another State, would fall andel
what is classed as culpable imprudence. If indeed the State per-
initted, or connived at the offence, and sheltered the offender, it
a be just as much an aggressor, as if the invasion had been
sade by the regular forees of the kingdom, But when the indi-
vi duals of any State violate this gener ral law, it is then the interest,
as well as the duty of the Government under which they live, to
enimadvert upon them with a becoming severity, that the peace of
the world may be maintained. For in vain would nations, in their
collective capacity, observe these universal rules, if private subjects
were at liberty to break them at their own discretion, and involve
the two States in war. It is, therefore, incumbent upon the nation
inured, first, to demand satisfaction aud justice to be done on the
sioner | ry the State to which he belongs ; ; and, if that is refused
or neglected, the Sovereign then avows “himself” an accomplice or
abettor of his subjects’ crimes, and draws upon his community the
culamities of foreigu war.
Wheaton, (p. T16,) says: The respect due to neutral territorial
seas is not confined to a total abstinence, from every act of hosti-
Hy it equally extends to the procecdings immediately prepara-
tory to those acts. Thus a fleet or vessel of war, or privateer,
cannot, without committing a violation of territory, establish itself’
upon any point of this sea, in order to watch the passage of vessels,
whether of war or merchantmen of the enemy or neutral ships,
even if it leaves its retreat, in order to attack them outside of the
limits of the neutral jurisdiction. Without doubt, hostilities, the
cmployment of force, the exercise of the right of war, have no
ylace within the juris¢iztional limits of pacific Sovereigns friendly
to the two parties, but the law of war does not admit that the terr’-
tory of a neutral people should serve as an ambuscade for one of
the belligerents to favor his operations of the war to the detriment
of the other. All the prizes made under such circumstances are
then unlawful, and give to the neutral the right of claiming from
the belligerent, w ho does these acts, a reparé ation, as if they had
been committed on his own proper territory, and within the limits
of his jurisdiction.
In consequence of the laying in wait at Southampton, by an
American steamer of war, watching for the departure of a Confe-
derate armed steamer, and sending 1 men on shore for that purpose,
Earn Russeit wrote January the 10th, 1862, to Mr. Adams,
** I think it necessary to state to you, that, except in case of stress
ee ee oe
ee
= -
= >
ee
300
of weather forcing them to land, Her Majesty’s Government
cannot permit armed men in the service of a foreign Government
to land upon British Territory. (Lbid., page 721.) There is then
no exception to the rule, that every voluntary entrance into neutral
territory, with hostile purposes, is absolutely unlawful. ‘* When
the fact is established,” says Sir W. Scott, it overrules every other
consideration. A capture made under such circumstances, is done
away ; the property must be restored, ponerse tania that it may
actually belong to the enemy, (Lbid., page 727.) It is a settled
principle of the law of nations, that no belligerent can rightfully
make use of the territory of a neutral State for belligerent pur-
poses, without the consent of the neutral Government.”
Vattel (B. 3, ¢. 7, p. 844,) says: It is certain that if my neigh-
bor affords a retreat to my enemies, when defeated and too
much weakened to escape me, and aliows them to recover, and watch
a favorable opportunity of making a second attack on my territories,
this conduct, so prejudicial to my safety and interests, would be
incompatible ‘with neutrality. If therefore, my enemies, on suffer-
ing a discomfiture, retreat into his country, although charity will
not allow him to refuse them permission to pass in security, he is
bound to make them continue their march beyond his frontiers as
soon as possible, and not suffer them to remain in his territories to
watch for a convenient opportunity to attack me anew: otherwise
he gives me a right to enter his country in pursuit of them. Such
treatment is often experienced by nations that are unable to command
respect. Their territories soon become the theatre of war; armies
march, encamp and fight in it, as in a country open to all comers.
Vattel (B. 2, ¢. 6, p. 161,) says: But, if a nation or its chief
approves and ratifies the act of the individual, it then becomes a
public concern; and the injured party is to consider the nation as
the real author of the injury of which the citizen was perhaps only
the instrument.
If the offended State has in her power the individual who has
done the injury, she may, without scruple, bring him to justice and
punish him. If he has escaped and returned to his own country,
she ought to apply to his sovereign to have justice done in the case.
And since the latter ought not to suffer his subjects to molest the
subjects of other States, or to do them an injury, much less to give
open audacious offence to foreign powers, he ought to compel the
transgressor to make reparation for the damage or injury, if
possible, or to inflict on him an exemplary punishment, or finally,
according to the nature and the circumstances of the case, to
deliver him up to the offended State, to be there brought to justice.
Assassins, incendiaries and robbers are seized everywhere, at
the desire of the sovereign in whose territories the crime was.
committed, and are delivered up to his justice.
iment
vment
3 then
eutral
When
other
3 done
it may
settled
htfully
it pur-
‘neigh-
nd too
L watch
‘itories,
uld be
. suffer-
‘ity will
y, he is
tiers as
‘ories to
herwise
Such
mmand
armies
omers.
ts chief
romes a
ation as
ps only
yho has
ice and
rountry,
le case.
lest the
to give
pel the
jury, if
finally,
case, to
justice.
ere, at
e was.
‘
301
The Sovereign who refuses to cause reparation to be made for
the damage done by his subject, or to punish the offender, or finally,
to deliver him up, renders himself in some measure an accomplice
in the injury, and becomes responsible for it. But if he delivers
up either the property of the offender, as an indemnification, in
cases that will amit of pecuniary compensation, or his person, in
order thit he may suffer the punishment duc to his crime, the
offended party has no further demand on him.”
in support of the doctrines and opinions thus enunciated, many
other eminent writers and authors could be quoted. But I conceive
that I have gone far enough in this direction, and have adduced
sufficient authority to refute the mistaken opinions entertained by
our opponents of the obligations imposed upon us by the laws of
neutrality.
I now call your Honor’s attention to the case of Bennett G.
Burley, lately extradited upon the demand of the United States.
This person was arrested upon a charge of robbing one Ashley, on
board the Philo Parsons, a steamer sailing at the time on Lake
Erie. ‘The prisoner when ordered to render an account of his
conduct before the Recorder of the City of Toronto, set up as a
justification of the act, that he, Burley, was a commissioned officer
in the service of the so called Confederate States, that he was
entitled to be regarded as a belligerent, and that his object in
taking forcible possession of the Philo Parsons, which he and others
did, in addition to the robbery of Ashley, was to use her as a means
to enable his party to effect the release of Southern prisoners
detained in Camp Douglas, on Johnson’s Island. The Recorder
held that the act of robbery was not justified, and ordered extra-
dition. A writ of Habeas Corpus was next applied for by the
prisoner’s counsel. The application was made to Chief Justice
Draper, who had sitting with him three other Judges. It was very
ably argued and very ably opposed by the counsel engaged on both
sides, and after a patient and careful consideration of the facts and
the law applicable to them, the writ of Habeas Corpus was, by these
learned Judges, refused. Be it remembered, too, that in this case
the prisoner produced an order or proclamation from the Confederate
President avowing the act of Burley, and assuming all the respon-
sibility. But the Judges held, and held rightly, that no such order
or .proclamation could justify the circumstances under which the
crime was committed, commencing with the violation of our neu-
trality laws; and that if the authority upon which the priscner
relied, was of any value, the proper time and place to urge it as
matter of justification, was at his trial, and before the Court having
jurisdiction to hear and determine upon the merits of the offence
charged. There is then this difference between the case of Burley
bi ERS
ALG
te
i
‘A
i
bE
i
i
|
302
and that of the prisoners now before this Court, that Mr. Davis
avowed Burley’s deed, and refused to give a like recognition to the
acts of Bennett IT. Young and his accomplices. But then the
soundness, the legality of this judgment have been questioned by
my learned friends on the other side. Indeed one of them has
carried his criticism to the extreme length of saying, that the
judgment is a disgrace to the judiciary of “Upper Canada, and is a
proof of the unfitness of the Judges in that section of the country,
to deal with questions of international law ! ! Perhaps this is the
opinion of the gentleman who has denounced in such strong
vituperative terms the Chief Justice and his brother Judges. But
certainly it is not the opinion of the eminent writers upon interna-
tional law, from whose pagesfI have read, nor will it, I trust, be the
ypinion of your Ifonor. I admit, however, that the learned Judge:
whose judgment has provoked so much wrath, committed an unpar-
donable error in adjudging Burley’s case, without consulting my
learned friends, whom I am sure would have felt great pleasure in
indoctrinating their Honors with ideas of international law a:
anderstood by Jeff. Davis, and practised by raiders generally.
3elieving, however, that the Bench of U pper Canada will not be
deterred from pursuing the path of rectitude, by the belligerent
observations of my learned friend, and that it is quite possible he
might be induced to look upon them with more favor, if he heard
the reasons of their judgment once more, I will now read a few
extracts from the published report of their decision, which, notwith-
standing all that has been said to the contrary, [ still persist in
commending to the careful attention of the prisoner’s counsel.
“ But,” said Chief Justice Draper, “ conceding that there is
evidence that the prisoner was an officer in the Confederate service.
and that he had the sanction of those who employed him to
endeavor to capture the Michigan, and to release the prisoners on
Johnson's Island, the manifesto put forward as a shield to protect
the prisoner from personal responsibility does not extend to what
he has actually done—nay more, it absolutely prohibits a violation
of neutral territory or of any rights of neutrals. The prisoner, how-
ever, who according to the testimony, was a leader in an expedition.
embarked surreptitiously from a neutral territory. His followers.
with their weapons, found him within that territory, and proceeded
thence to prosecute their enterprise, whatever it was, into- the
territory of the United States. Thus, assuming their intentions to
have been what was professed, they deprived the expedition of the
character of lawful hostility, and the very commencement and
embarkation of their enterprise was a violation of neutral territory.
and contrary to the letter and the spirit of the manifesto produced.
This gives a greater reason for carefully enquiring whether, looking
Davis
to the
n the
ed by
m has
at the
nd is a
yuntry,
is the
strony
. But
ntern:-
be the
Judges
unpar-
ing my
gure 1
law as
nerally.
not be
ligerent
sible he
e hear’!
la few
notwith-
brsist 111
el.
here i:
service,
him to
ers on
protect
to what
riolation
r, how-
edition.
lowers.
beeederdt
to: the
tions to
of the
nt and
rritory.
bduced.
lookin:
303
at the whole case, the alleged belligerent enterprise was not put
forward as a pretext to cloak very different designs. Taken by
themselves, the acts of the prisoner himself clearly establish a
prima facie case of robbery with violence—at least according to
our law. The matters alleged to deprive the prisoner’s acts of this
criminal character are necessarily to be set up by way of defence
to the charge, and involve the admission that the prisoner committed
the acts, but denying their criminality. Assuming some act done
within our jurisdiction, which, unexplained, would amount to robbery ;
if explanations were offered, and evidence to support them were
given at a preliminary investigation, we accused could not be
discharged—the case must be submitted to a jury. This case
cannot, from its very nature, be investigated before our tribunals,
for the act was committed within the jurisdiction of the United
States. Whether those facts are necessary to rebut the prime
faete case can be proved, can only be determined by the courts ot
that country. We are bound to assume that they will try and
decide it justly.
T do not, on the whole, think the prisoner is entitled to be dis-
charged.
T should add, that, considering the nature of the questions to be
determined, I requested the learned Chief Justice of the Common
Pleas, and my brothers Hagarty and John Wilson, who were all, at
the moment, within reach, to sit with me and aid me with their
opinion. I am sustained by their concurrence in the conelusion at
which I have arrived.”
Chief Justice Michards—* Taking the evidence adduced agains:
the prisoner, there seems to have been sufficient to warrant his
committal. Then, has he shown sufficient to relieve him of the
charge ?
“Tf, on a similar matter occurring in this country, [ was called
upon to decide whether I would discharge the prisoner or commit
him for trial, I should feel hound to commit him. TI should say.
that looking at all the facts as they are presented on either side.
the conduct of those parties, and what they said and did during
the time the vessel was in their possession, was of that equivocal
character, that it would, in the most favorable view suggested foi
the prisoner, be a matter for the consideration of a jury, whether
they were acting in good faith in carrying out a belligerent enter-
prise, or whether they were not making an expedition for the pur-
pose of plunder, under pretence of a belligerent enterprise, think-
ing in that way more readily to escape detection.
‘‘ Entertaining the opinion I have expressed, it is my duty to
declare that the learned Recorder was warranted in deciding to
commit the prisoner for the purpose of being surrendered. Ag
a eee a Se “
—
IR ALS ROT ace eT I mg
. : a ae
ay “
csarsiidengda tate nid asia ake eee
304
long as the Extradition Treaty between this country and the
United States is in force, it ought to be honestly carried out, and
in all cases where the evidence shows that an offence had been
committed, though there may be conflicting evidence as to the
facts, or different conclusions drawn from the facts, yet in those
cases where we would commit for trial, in similar cases in this
country, we are equally bound to commit to be surrendered for
trial under the Treaty, and our Statute passed to carry it out. We
must assume that parties will have a fair trial after their surrender,
or we ought not to deliver them up at all, or to have agreed to do
so.”
Justice Hagarty——‘I think the only just course open to a Cana-
dian Court is to decline accepting either the prisoner’s statement
or his alleged employer’s avowal of his acts, as conclusive evidence
of the proposition that his conduct was war and not robbery. It
should accept the evidence offered as establishing a prima facie
case of guilt sufficient to place the prisoner on his trial, and all for
his defence. The whole burden of proving that the transferring
of the money from Ashley’s pocket to that of the prisoner and his
friend, does not bear the complexion that men of plain understand-
ing must, under the circumstances, attribute to it, must be thrown
upon the prisoner.
I think I am bound to a treaty so made between my Sovereign
and her ally in a liberal and just spirit, not laboring with eager
astuteness to find flaws or doubtful meanings in its words, or in
those of the legal forms required for carrying it into effect.
We are to regard its avowed object,——the allowing of each
country to bring to trial all prisoners charged with the expressed
offences. Neither of the parties can properly have any desire to
prevent such trial, or to shield a possible offender. If the position
of the case were reversed, and the prisoner had done the acts com-
plained of in this country, and claimed to be a belligerent against
our Sovereign, I think any Canadian judge or magistrate would
commit him for trial for robbery, leaving him to plead his bellige-
rent position at his trial for what it was worth. I have neither
the desire nor the right to assume that he will not be fairly tried
in the United States. The Treaty is based on the assumption that
each country should be trusted with the trial of offences committed
within its jurisdiction. I think the prisoner should be remanded
on the Recorder’s warrant, which I think is not open to any valid
objection. Had I differed from the result arrived at: by the
Recorder, I should then have to consider a doubt more than once
expressed, whether any judge can review his decision.”
(After reciting the facts, Mr. Justice Wilson proceeds :)
«These proceedings, so mean in their inception and so ignoble
the
and
been
y the
those
. this
d for
We
nder,
to do
Cana-
ement
idence
. it
: facie
all for
ferring
and his
rstand-
thrown
vereign
eager
3, or m
pf each
pressed
esire to
position
ts com-
against
would
bellige-
neither
ly tried
ion that
amitted
manded
y valid
by the
an once
)
ignoble
305
in their development and termination, we are asked to consider as
acts of war, and to accord to the prisoner belligerent rights. What
is there in all this which constitutes the act of war? If the object
were to release the prisoners, from all that appears, they never were
nearer than fourteen miles to Johnson’s Island. Was the seizure
of this unarmed boat per se an act of war ?—for it has been argued
that the robbery was merged in the higher act. The seizure of the
boat, for whatever purpose, was one thing, the robbery of Ashley
quite another ; and in no way that we see, in furtherance of the
design now insisted upon necessary for its accomplishment. But is
not the bona fide of the enterprise matters of defence which a jury
ought to try? Such a trial can only be had where the offence was
committed, and we cannot doubt but that justice will be fairly ad-
ministered. Then we are told that although the prisoner has no
orders to show, authorizing what he did, he has the manifesto of
the President of the Confederate States avowing the act and as-
suming it, and therefore he is not subject to this charge at all. We
accord to that Confederacy the rights of a belligerent, as the
United States has done from the day it treated the soldiers of the
revolted States as prisoners of war; but there is an obvious dis-
tinction between an order to do a belligerent act, and the recogni-
tion and avowal of such an act after it has been done. The one is
an act of war, the other an act of established government. The
one is consistent with what Great Britain acknowledges, the other
is not. For us judicially to give effect to the avowal and adoption
of this act, would be to recognize the existence of the nationality
of the Confederate States, which, at present, our Government refuses
to acknowledge.
Giving for the moment this manifesto its full force, it distinct'y
(lisclaims all breaches of neutrality : but it is clear that this expedition
took its departure and shipped its arms from our port. But does
it assume the responsibility of this seizure, and all that was done
upon it throughout? If not, it is neither justification nor excuse. I
see no authority for the doing of the act, and as an assumption of
what was done, therefore, the whole justification fails. Lastly, the
attitude of the United States towards us is no concern of ours.
Sitting here, whatever they do, while peace exists, and this Treaty
is in force, we are bound to give it effect. We can look with no
favor on treachery and fraud ; we cannot countenance warfare to be
carried on except on the principles of modern civilization. We
must not permit, with the sanction of law, our neutral rights to be
invaded, our territory made the base of warlike operations or the
refuge from flagrant crimes. Peace is the rule, war the exception
of modern times; equivocal acts must be taken most strongly
against those who, under pretence of war, commit them. For these
306
reasons, I think the prisoner must be remanded on the warrant of
the learned Recorder.”
And for the same reasons so also should the prisoners here be
remanded, unless it can be made to appear that we have one set of
neutrality laws for Upper Canada, and another and a totally dis-
tinct set for Lower Canada. But as this is not pretended, the
judgment in the Burley case disposes of the question at issue here,
unless indeed your Honor, like the prisoners’ counsel, should be of
opinion that your brother J udges,— distinguished as they undoubtedly
are for judicial attainments of the highest character,—have in the
Burley matter misunderstood the law, misapplied the facts, and
evidenced gross ignorance of our international relations, a con-
clusion which assuredly does not flow from the premises.
With these remarks on the Burley case, I will now address my-
self to another point raised by tlie prisoners’ counsel, which I un-
dertake to refute by incontrov.iti ie authority, namely, that the
prisoners being citizens of the Sout!.ern States, had, by the laws of
war, aright to regard the citize::3 of the Northern States, with
whom they are at war, as their enemies, and as such to put them
to death, wherever or whenever they could, and that for this pur-
pose they have a right to employ all sorts of means. “ A strange
maxim !” (Vattel, B. 3, ¢c. 8, p. 857,) ‘but happily exploded
by the bare ideas of honor, confused and indefinite as they are. In
civil society, I have a right to punish a slanderer—to cause my
property to be restored by him who unjustly detains it; but shall
the means be indifferent? Nations may do themselves justice,
sword in hand, when otherwise refused to them; shall it be in-
different to human society that they employ odious means. (Jdid.,
B. 3, c. 8, p. 801.) Women, children, feeble old men, sick persons,
come under the description of enemies, and we have certain rights
over them, inasmuch as they belong to the nation with whom we
are at war. But these are enemies who make no resistance, and
consequently we have no right to maltreat their persons or use any
violence against them, much less to take away their lives. This is
so plain a maxim of justice and humanity, that at present every
nation in the least degree civilized acquiesces in it. The like may
be said of the public ministers of religion, of men of letters, and
other persons who live remote from military affairs. (Was not St.
Albans remote from military affairs?) At present war is carried on
by regular troops; the people, the peasants, the citizens take no
part in it, and generally have nothing to fear from the sword of the
enemy. (Ilid., p. 359). I give, then, the name of assassination to
a treacherous murder, whether the perpetrators of the deed be sub-
jects of the party whom we cause to be assassinated—or of our
own Sovereign. Assassination and poisoning are, therefore, con-
307
‘trary to the laws of war, and equally condemned by the law of na-
ture and the consent of all civilized nations. (Jdid., pp. 361, 362.)
I cannot conclude this subject of what we have a right todo against
the person of the enemy, without speaking a few words concerning
the dispositions we ought to preserve towards him. Let us never
forget that our enemies are men; though reduced to the disa-
greeable necessity of prosecuting our rights by force of arms, let
us not divest ourselves of that charity which connects us with all
mankind. Thus shall we defend our country’s rights without vio-
lating those of human nature. Let our valor preserve itself from
every stain of cruelty, and the lustre of victory will not be tar-
nished by inhuman and brutal actions. (Jbid., p. 368.) What we
have advanced is sufficient to give an idea of the moderation which
we ought to observe, even in the most just war, in exerting our
right to pillage and ravage the enemy’s country.”
‘“¢ Except the single case in which there is question of punishing
an enemy, the whole is reducible to this general rule. All damage
done to the enemy unnecessarily, every act of hostility which does
not tend to procure victory and bring war to a conclusion, 18 a li-
centiousness condemned by the law of nature. (Ibid., p. 869.)
The pillage and destruction of towns, &c., are measures odious and
detestable on every occasion when they are put in practice without
absolute necessity, or at least very cogent reasons. But as the
perpetrators of such outrageous deeds might attempt to palliate
them under pretext of deservedly punishing the enemy, be it here
observed, that the natural and voluntary law of nations does not
allow us to inflict such punishments, except for enormous offences
against the laws of nations.”’
‘* Soldiers, says Vattel (B. 8, c. 15, p. 400), “can undertake
nothing without the express or tacit command of their officers.
They are not to act at their own discretion. Wherefore, with
respect to things which are not entrusted to their charge, they
(soldiers and officers) may both be considered as private individu-
us, who are not to undertake anything without orders. The obli-
gation of the military is ever more strict, as the martial law
expressly forbids acting without orders ; and this discipline is so
necessary that it scarcely leaves any room for doubt.”’
These citations, I think it will be admitted, do not bear out my
learned friend’s ideas of carrying on war. We will now see what
Wheaton says upon this subject ( Wheaton, p. 7.) ‘ Thus, for
instance, on mere general principles, it is lawful to destroy your
enemy ; and mere general principles make no great difference as
to the manner by which that 13 to be effected ; but the conventional
laws of mankind, which is evidenced in their practice, does make
a distinction, and allows some, and prohibits other modes of de-
——— =
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——
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308
struction ; and a belligerent is bound to confine himself to those-
modes which the common practice of mankind has employed, and
to relinquish those which the same practice has not brought
within the ordinary exercise of war, however sanctioned by its
principles and purposes. (Jdid., p. 588.) No use of force is lawful,
except so far as it is necessary. A belligerent has therefore no
right to take away the lives of those subjects of the enemy whom
he can subdue by other means. Those who are actually in arms,
and who continue to resist, may be lawfully killed ; but the inhabi-
tants of the enemy’s country who are not in arms may not be slain,
because their destruction is not necessary for obtaining the just
ends of the war. [Was the assassination of Morison at St. Albans by
the prisoners necessary for this purpose ?] (Wheaton, pp. 591 to:
604.) All the members of the enemy’s State may lawfully be
treated as enemies in a public war ; but it does not, therefore, fol-
low that all these enemies may be lawfully treated alike. No use
of force against an enemy is lawful unless it is necessary to accom-
plish the purposes of the war. The persons of the Sovereign and
his family, the members of the civil government, women and child-
ren, cultivators of the earth, artizans, laborers, merchants, men of
science and letters, and generally all other public or private indi-
viduals engaged in the ordinary civil pursuits of life, are, by the
custom of civilized nations, founded upon the foregoing principle,
exempted from the direct effect of military operations, unless
actually taken in arms, or guilty of some misconduct in violation of
the usages of war, by which they forfeit their immunity. Private
property on land is also exempt from confiscation, with the exception
of such as may become booty in special cases, when taken from
enemies in the field (éd., p. 626). The effect of a state of war
lawfully declared to exist is to place all the subjects of each belli-
gerent power in a state of mutual hostility. But the usage of
nations has modified this maxim, by legalizing such acts of hostility
only as are committed by those who are authorized by the express
or implied command of the state. Such are the regularly com-
missioned naval and military forces of the nation. ‘The horrors of
war would indeed be greatly aggravated if every individual of the
belligerent states was allowed to plunder and slay indiscriminately
the enemy’s subjects, without being in any manner accountable
for his conduct. Hence it is that in land wars irregular bands of
marauders are liable to be treated as lawless banditti, not entitled
to the protection of the mitigated usages of war as practised by
civilized nations.”
‘© War (8 Phillimore, p. 100,) is not to %* considered as an in-
dulgence of blind passions, but as an act of deliberate reason ; and as
Lord Bacon says, ‘no massacre or confusion, but the highest trial
309
of right.’ Wanton cruelty exercised towards the enemy’s subjects
is therefore, according to the principles and practice of Christian
nations, unjustifiable and illegal. (Jdid., p. 103.) Reason, mora-
lity and religion alike commend to the understanding and the con-
science of nations, that cardinal principle of the law of war, to
which reference has already been made, and by which it is decided,
‘that every thing is not lawful against an enemy,’ but only those
things which are essential to the vigorous prosecution and speedy
termination of the war. The conqueror (J6., p. 145) is obliged
by the laws of just war, to spare those who lay down their arms, or
who are helpless. To put such to death is to commit murder. And
those who commit it, ought to die by the hand of the hangman, and
not of the soldier. Bands of marauders acting without the authority
of the Sovereign or the order of the Military commander, have no
claim to the treatment of prisoners of war.”
The same doctrine is maintained by every modern writer upon
the laws of civilized warfare. In the case of Talbot vs. Janson,
decided in the Supreme Court of the United States, and reported
in 1 Curtis, p. 189, the principle, supported by the authorities I
have just quoted, is well and clearly laid down in a judgment ren-
dered by that high tribunal, from which I take the following ex-
tract: “ That by a due consideration of the law of nations, what-
ever opinions might have prevailed formerly to the contrary, no
hostilities of any kind except in necessary self-defence, can lawfully
be practised by one individual of a nation, against an individual of
any other nation at enmity with it, but in virtue of some public
authority. War is instituted for national purposes, and directed to
national objects ; and each individual on both sides is engaged in
it as a member of the society to which he belongs, not from motives
of personal malignity and ill-will. He is not to fly like a tiger upon
his prey, the moment he sees an individual of his enemy before him. '
Such savage notions I believe obtained formerly—thank God more
rational ones have succeeded. Even in the case of one enemy
against another enemy, therefore, there is no color of justification
for any offensive hostile act, unless it be authorized by some act of
the Government giving the public constitutional sanction to it.”
In the case of Little vs. Barreme, also decided in the Supreme
Court of the United States (1, Curtis, p. 465), Chief Justice
Marshall, admitted by my learned friends to be a high authority,
held that instructions from the President to the commander of a
public armed vessel of ihe United States, to do an illegal act, do
not justify the officer in doing it, nor so far excuse him as to ex-
empt him from paying damages. In rendering judgment, Chief
Justice Marshall said: “I confess the first bias of my mind was
very strong in favor of the opinion that though the instructions of
310
the Executive could not give a right, they might yet excuse from:
damages. I was much inclined to think that a distinction ought to
be taken between acts of civil and those of military officers ; and
between proceedings in the body of the country and those on the
high seas. That implicit obedience which Peps} men usually pay
to the orders of their superiors, which indeed is indispensably
necessary to every military system, appeared to me strongly to
imply the principle that those orders, if not to do a prohibited act,
ought to justify the person whose general duty it is to obey them,
and who 1s placed by the laws of his country in a situation which
in general requires that he should obey them. I was strongly in-
clined to think, that where, in consequence of orders from the
legitimate authority, a vessel is seized with the pure intention, the
claim of the injured party for damages would be against that
Government from which the orders proceeded, and would be a pro-
per subject for negociation. But I have been convinced that I was
mistaken, and I have receded from this first opinion. I acquiesce
in that of my brethren, which is, that the instructions cannot change
the nature of the transaction, or legalize an act, which, without those
instructions, would have been a plain trespass.”
These authorities I confidently submit to your Honor’s judgment,
and in refutation of the absurd and happily exploded maxim, that.
every injury inflicted by one enemy against the person of another
enemy in time of war, and under pretence of war, is justifiable.
The next case to which I shall refer is that of McLeod, so much
relied on by my learned friends, and with it I intend to close my
observations upon this branch of the case.
McLeod, it is well known, was arrested in the State of New
York, in the month of November, in the year 1840, because of his
supposed participation in the destruction of the steamer Caroline,
and the killing of one Durfee. Now, the circumstances under which
these acts were committed were very different indeed from those which
we are investigating. Between the burning of the Caroline, the
killing of Durfee, and the robbery of Breck, and of the banks, the
murder of Morrison, and the wounding of several other persons at.
St. Albans by the prisoners, upon the 19th day of October last,
there is not the least analogy, absolutely none whatever. The de-
struction of the Caroline was an act of public force, done by the com-
mand of the British Government, and all that McLeod did in it, if
anything, he did by the express command of his superior officer, and
in compliance with the order of his own Government.
The Caroline was destroyed in December, 1837, and from the
published accounts of the transaction, we gather, that after the re-
bellion which, during that year had broken out, had been suppres-
sed, a small band of Canadian refugees, who had taken shelter in
311
the State of New York, formed a league with a number of other
evil disposed persons, for the purpose of invading the British terri-
tory, not to join a party engaged in civil war,—because civil war at
that time in Canada there was none,—but in order to commit within
British territory the crimes of 1 ery, arson, and murder. After
some days’ preparation, these people proceeded to invade and occupy
Navy Island, and part of the British territory ; and having engaged
the steamboat Caroline, which, for their special service was cut out
of the ice in which she had been enclosed in the port of Buffalo,
they had used her for the purpose of bringing over to Navy Island,
from the United States territory, men, arms, ammunition, stores
and provisions. In consequence of these preparations, the British
authorities stationed a military force at Chippewa, to repel the
threatened invasion, and to defend Her Majesty’s territory. The
commander of that fort, seeing that the Caroline was used as a
means of supply and reinforcement for the invaders, who had occu-
pied Navy Island, judged that the capture and destruction of that
vessel would prevent supplies and reinforcements from passing over
to the Island, and would, moreover, deprive the force on the Island
of the means of passing over to the British territory on the main-
land. Accordingly, on the 29th of December, 1837, an expedition
of seven small boats, and sixty-three armed men, was fitted out at
Chippewa, by the direction of Col. McNab, (who was lawfully in
command of Her Majesty’s forces at the last named place, and
vested with full authority to do so, ) and commanded to take the said
steamboat by force, wherever found, and to bring her in or destroy her.
By this expedition, in which McLeod was engaged, the Caroline was
captured and destroyed, and in that capture Durfee lost his life.
Hence the subsequent arrest of McLeod. No sooner, however, was
this arrest made known, than his immediate fiberation was demanded
by che British Government. The grounds, said Mr. Fox, (the then |
British Minister,) addressing himself to Mr. Webster, “* upon which
the British Government make this demand, are these: that the
transaction, on account of which McLeod has been arrested, and is
to be put upon his trial, was a transaction of a public character,
planned and executed by persons duly empowered by Her Majes-
ty’s Colonial authorities, to take any steps, and to do any acts,
which might be necessary for the defence of Her Majesty’s territo-
ries, and for the protection of Her Majesty’s subjects; and that
consequently those subjects of Her Majesty who engaged in that
transaction, were performing an act of public duty, for which they
¢annot be made personally and individually answerable to the laws
and tribunals of any foreign country.”
To this demand, Mr. Webster replied in these words :—‘‘ The
Government of the United States entertains no doubt that, after
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312
this avowal of the transaction, as a public transaction, authorized
and undertaken by the British authorities, individuals concerned in
it ought not, by the principles of public law, and the general usage
¥ civilized states, to be holden personally responsible in the ordin-
ary tribunals of law, for their participation in it; and the President
presumes that it can hardly be necessary to say that the American
people, not distrustful of their ability to redress public wrongs, by
public means, cannot desire the punishment of individuals, when the
act complained of is declared to have been an act of the Government
itself.
After this correspondence, an application was made for the
release of McLeod, supported by the law officers of the Government
of the United States ; but, Judge Cowen, to whom it was made,
refused it, upon the greund, that the avowal of McLeod’s act by
the British Government, did not, and could not, legalize that which
according to his views was a crime, before its avowal. He held,
moreover, that an indictment for murder having been returned
against McLeod, the Court could not by the recognition of the Bri-
tish Government of his (McLeod’s) deeds, be ousted of its jurisdic-
tion to try the offence. McLeod was therefore brought to trial, and,
after a full hearing of the case, acquitted. Subsequently the opinion
of Judge Cowen was reviewed ad udge Talmadge, (26, Wendell,
p- 668,) who held that as the British Government had not only
approved, but ordered the destruction of the Caroline, during which
Durfee was killed, McLeod was not individually answerable for
the consequences resulting therefrom. From the moment that it
was sanctioned and avowed by England, it became a national ques-
tion, and one to be determined, ~ot in the ordinary municipal tri-
bunals of the States ; but in the high political Courts of Washing-
ton and St. James.
Where then is the analogy between this case and that of Young
and his accomplices? McLeod, in obedience to the command of
his superior officer. performed a soldierly act, one which was deemed
necessary for the Jefence of his country, and which was approved
by his Sovereign ; whereas Young and his associates, without any
authority, performed the very contrary of a military act — one
which no man with any regard for truth can pretend was justified
by the laws of self-defence or self-preservation. McLeod aided in
the destruction of a steamer, employed in carrying aid to the inva-
ders of his country ; Young and his party devoted themselves to the
robbery and murder of private citizens. And yet we are told that
there is great analogy between both acts—the capture of the Caro-
dine, and the raid at St. Albans. If there is, 1 am compelled to
say, I do not see the resemblance.
So far your Honor will have perceived that I have argued the
10rized
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usage
ordin-
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urned
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13
case with no more than
by my learned Opponents—and the reason is t! MY OP won,
they have little or no application to the Statemen of facts efore
us. Mr, Laflamme, it is true, stated in his add of yen rday,
that two new and important facts were brought ¢ gli since your
Honor’s illIness—the firs
t was the despatch of Earl Russell, in an-
Swer to Mr, Adams, touching the discharge of the persons who rose
upon the officers and crew of the Roanoke, and destroyed that yes.
sel. Well, my answer to this new discovery is this ‘—that in the
Case of the Ltoanoke, there was, to commence with, no Judicial in-
vestigation. Secondly :—That Earl Russell stated in reply to Mr.
Adams, that there Was not sufficient evidence to detain the persons
complained of; and lastly, that the commander of the party was
duly commissioned and entitled to the recognition of a belligerent,
Besides, his act Was not one having for its object private pillage.
In addition to which, I must remind the gentleman that there ig a
wide distinction made between maritime warfare and war upon land
—between the taking of
6°" Private property at sea, and the taking of
it on land. ‘The sea being the common highway of the world, bel-
age each other, have equal rights and
speaking of maritime warfare, says:
has slowly but constantly tended
to soften the extreme severity of the Operations of war by land ;
in respect to maritime warfare, in
which the private property of the enemy taken at sea or afloat in
apture and confiscation. This
WS of war, by land and by sea,
y alleging the usage of considering private pro-
2 ’y storm as booty, Whereas,
the object of maritime wars ig the destruction of the enemy’s com.
merce and havigation, the sources and sinews of his naval power,
which object can only be attained by the capture and confiscation
of private property,
'¢ Second new fact, brought to light by the learned Counsel
(Mr. Laflamme), amounts si i
& pass referen, — to hi eeches > ade
ropositions set up by the prisoners’
advocates, none, surely, for reck
less assertion, approaches to this .
last one. No animus furandj ! }
be believed, that when they robbed Breck they did
not intend doing C
so? Can it be reasonably pretended, that when
they stole from the banks $220,000, that t
that either? Shall it be sai
€ said, that when they set to work to steal
orses, as they actually did
314
cape with their plunder, that they did not know what they were
about ? Can it be believed that when Young and his party murdered
Morrison, shot Huntingdon, and wounded several other citizens of
St. Albans, they had no criminal intent ? et it is painful to be
obliged to listen to, and to answer such unfounded arguments ; but
the real fact is (and it is not a new one), that it would seem as if
we met here to waste time, and, as I have before stated, to trifle
with, instead of honestly te fulfil, our Treaty engagements. Young
and his accomplices had no criminal intent in their St. Albans ope-
rations! If this be true, why is it that up to this hour they have
not made restitution? What have they done with the stolen money ?
If they are the honest, upright men their Counsel represent them
to be, they ought not to forget the favors which our indulgent citi-
zens daily lavish upon them. ‘They should not oblige us to pay
their debts. Fifty thousand dollars—the sum voted by Parliament
to be refunded to the St. Albans banks, in lieu of the amount, a
part of the proceeds of their robbery, taken from Bennett H. Young
& Co., in this Province, and subsequently, by an act of fraud, re-
stored to them—is rather too much to pay for the honor of their ac-
quaintance. No writer, says Mr. Laflamme, has yet ventured to
say that the prisoners should be extradited, by reason of the crimes
charged against them. Again, I say, he is mistaken. With very
few exceptions, every newspaper published upon this and the other
side of the Atlantic, has denounced the savage deeds of his clients.
For instance, the London Post (Government organ, Dec. 29), in
a lengthy article upon the subject, says :—‘* That these “raiders”’
really come within the terms of the Extradition Treaty, there can,
we conceive, be no manner of doubt ; although an attempt was made
to release them from custody, before the pretext of the badness of
the warrants had been set up, on the ground that they were recog-
nized belligerents, whereas the articles of the Treaty spoke only of
ordinary depredations. Such a pretence will not hold for a moment.
The Federals, indeed, quite as much as ourselves, have recognized
the Confederates to be belligerents, and they have invariably ac-
knowledged them to be entitled to the rights of war as against the
Federals themselves ; but war is only war when it is waged either
Jrom the open sea, or from territory belonging to the attacking bel-
ligerents. If, in the course of the recent Danish war, Prussians
had secreted themselves on the shores of Norfolk with the view of
making an attack upon Jutland ; or, vice versa, Danes had proposed
an attack upon Prussian seaports from Yarmouth or Hull, we
should certainly have arrested them without any special treaty of
extradition.”
The London News (29th Dec.), referring to the St. Albans
raid, says :—‘‘ We are bound to show the example of doing as we
were
dered
ens of
| to be
35 but
n as if
o trifle
Young,
ns ope-
'y have
noney !
.¢ them
mnt citi-
to pay
rliament
nount, &
, Young
raud, re-
their ac-
tured to
re crimes
Jith very
the other
is clients.
, 29), in
‘raiders’
rere can,
was made
adness of
pre recog-
e only of
moment.
ecognize
fiably ac-
rainst the
hed either
cking bel-
Prussians
e view of
proposed
Hull, we
treaty of
t. Albans
ing as we
315
would be done by; and as we have in former times uttered keen
remonstrances, and even resorted to actual force, when an enemy
used neutral soil to prepare machinations against us, it is impera-
tive that we should now vindicate our fair dealing and maintain our
friendly character, by prohibiting absolutely the abuse of our pro-
tection for the purpose of directing treacherous violence against the
inhabitants of a bordering and allied State. We should expect
France to do thus much for us if we were unhappily at war with
America, and Americans plotted and directed from Calais expedi-
tions to sack Brighton or burn Hastings. And itis clear that what
we should regard as the duty of France in such a case would be
still more her duty if the war were made upon our seaboard, not
by a foreign nation, but by our own subjects in revolt. This is the
American case at present, and there must be no hesitation in our
doing to them the justice which we should look for from every
friendly power if the case were our own.”
The Donon Morning Star, we also find, is not less explicit.
His opinion of the raiders’ conduct has been expressed in these
words: ‘* We are quite satisfied that the Canadian Executive,
equally with the Home Government, desire to make our neutrality
as perfect as possible ; and as the uncertainty of law is proverbial,
the Colonial authorities ought to adopt executive measures to main-
tain the tranquillity of the borders, by their own police and by the
military, in place of relying upon their ability to arrest and punish
offenders after a raid has been committed. ‘They may be sure that
a repetition of these raids will cause serious complications, involy-
ing an enormous expenditure in warlike preparations, if they do not
create such a feeling of irritation as to render the maintenance of
peace impossible. ‘The boundary which affords an easy protection
to the Confederate spoilers returning with the contents of bank
safes or traders’ bills, opposes as little difficulty to a pursuing party ;
and it would be vain to expect exasperated people who had been
robbed by banditti from Canada, to stop short at the visionary line,
and commence a mediation upon international law. If effective
measures are not adopted to compel our neutrality to be respected
by the Confederate refugees, that neutrality will not be respected
by the other belligerent ; mutual irritation will beget exasperation,
and exasperation will beget war. Such result will be rather too
high a price to pay for the honor of being selected by the Confede-
rate skedaddlers from their own country, as the base from which
to sally forth upon little robbing expeditions, which they are
more inclined to adopt than to enter into the regular military ser-
vice. Canada, governed as it is by the wise maxims of English
policy, will ever give a free and safe shelter to political exiles,
whatever may be their principles or their country, but the first duty
316
of these exiles is to respect the laws and neutrality of the land in
which they seek an asylum, and not to attempt to drag that coun-
try into war for a cause in which it has no interest, and with which
the bulk of the population have no sympathy. It is accordingly
the duty of the Canadian Executive to compel the Confederates to
cease these exasperating raids, and for this purpose to place the
necessary force at the frontier, and to take such other measures as
may be requisite to maintain the neutrality which the nation has
unanimously adopted. It will be better to do this, even at consid-
erable expense, than to run the risk of the calamities with which a
repetition of such raids must necessarily threaten the prosperity of
the colony.”
These extracts from leading English papers indicate that the
people of England have not much sympathy with the St. Albans
raiders. At any rate, as this case is not, I hope, to be determined
by in-door or out-door pressure, I will not further trespass upon the
time of the Court, by referring to what has been said or written
upon the subject in Canada or elsewhere.
Before, however, closing my argument, I desire to bring under
your Honor’s notice the fact, that durmg last November an attempt
was made by a few Southern men to burn down the city of New
York. As we all know, this attempt failed. But had it succeeded,
it would certainly have entailed irreparable loss upon the people of
that city. In fact, it would have proved a great misfortune—a
severe blow to every State in the Union. We also know that some
of the persons engaged and pledged to the commission of this dia-
bolical deed, were arrested, tried, and found guilty for their partici-
pation in it. But, notwithstanding that the destruction of New
York would, if carried out according to the plans of the Southern
incendiaries, have materially affected the prestige, if not to a certain
extent the resources of the North, I have yet to learn that any of
these prisoners followed the example of the St. Albans raiders, and
set up as a justification of their crime, that it was an act of military
hostility, and one which by the laws of war they were permitted to
commit against their enemy. No, the truth is, it was denounced
everywhere, and in no place more indignantly than in the capital
of the rebellious States. But, from what is transpiring around us
here in Canada, it would really seem, that if the New York incen-
diaries had been so fortunate as to have reached Montreal, and be
here arrested, there would not have been found wanting those who
would proclaim them belligerents, entitled, by the very greatness of
their guilt, to be ranked among the heroes of the war. Why any
number of our citizens should take a view so hostile to the interests
of the United States, I know not. We are, and must continue to
be, their next door neighbors. Socially and commercially we are
a = ~™~ .
—e
ee
“= CL,
and in
; coun-
. which
rdingly
rates to
ace the
jures as
Hon has
, consid-
which a
perity of
that the
3 Albans
termined
upon the
yr written
ng under
n attempt
y of New
ucceeded,
people of
ortune—a
that some
if this dia-
ir partici-
n of New
Southern
o a cértain
hat any of
hiders, and
of military
rmitted to
enounce
he capital
around us
ork incen-
al, and be
those who
reatness of
Why any
e interests
ontinue to
ly we are
317
intimately connected. And surely it is not wise, it is not prudent
in us, who have so much to gain by maintaining unbroken the
friendly ties that unite us to the great Republic, rudely, nay
violently, to tear to pieces the bond of friendship that has for so
many years secured to us the blessings of peace and the enjoy-
ment of an uninterrupted reign of prosperity. I beseech your
Honor to reflect well and seriously upon what you must know
will be the inevitable consequence of the prisoners’ discharge.
Remember, if you set them at liberty, you justify, so far as
you have it in your power, the atrocious crimes committed at
St. Albans ; and again open the door to a repetition of similar of-
fences. Discharge those prisoners, and others will be found wicked
enough to imitate their example. And what will be the result ?
Can you suppose for a moment that the United States will tamely
submit to see their citizens on the frontier, robbed and murdered
by Southern desperadoes, issuing from, and protected under the
laws of Canada, without striking a blow? Would we quietly submit
to such outrage under like circumstances ? Suppose, for example,
that Ireland was in a state of rebellion against England, that twenty
Irishmen during its continuance had crossed the Atlantic, had
found their way to St. Albans, and from there had secretly intro-
duced themselves into the city of Montreal, had robbed our banks,
shot down our citizens, and then fled with their plunder to St.
Albans. What, I ask, would the law-abiding people of Canada
say, if, to a demand for their extradition as robbers and murderers,
the United States replied: That the perpetrators of these crimes
committed them without criminal intent—that the state of war
existing at the time between England and Ireland, sanctified their
proceedings, and that as the accused claimed to be belligerents and
asserted that they murdered and robbed the good people of
Montreal in the name of rebellious Ireland, all further enquiry
must cease, the Treaty never having contemplated the prevention
of such gallant and patriotic achievements. Would we, I ask, rest
content with such answer to our demand? Or would we not, on
the contrary, regard with abhorrence, nay, with the most profound
contempt, the people and the judiciary of the country who enter-
tained such perverted views of national obligations—who sanctioned
such infamous outrages? I would also beg to remind your Honor
that although you have supreme control over this application for
extradition, and may dispose of it in any manner you please, never-
theless, the expressed will of the Government ought not, in a matter
of this great national and political importance, to be entirely
ignored. It may be said, and it is undoubtedly true, that the
Judges of Canada are removed far above and beyond all Govern-
ment influence, where it is to be devoutly hoped they will ever and
always remain.
318
3ut, as I have before stated, it is, and I say it in
all humility, the duty of the Judge, particularly in matters affect-
ing our political relations with foreign States, not to embarrass the
Government by an unwise or injudicious application of the laws
made and intended to preserve the national honor and the good
faith of the citizens. I know that for the means adopted by the
Legislature of this Province to guard against a repetition from
within our lines, of St. Albans raids, the Government has been un-
sparingly abused. But do not the authorities which I have had the
honor to cite—authorities recognized as laws binding upon all civi-
lized nations—fully sustain the precautionary measures so taken?
Nay, I venture to go a step further, and say that our Government
is entitled to the everlasting gratitude of the country, for the prompt
and efficient means they have taken to ensure the maintenance of
our neutrality laws, and the inviolability of Canadian territory.
With these remarks I must bring my argument to a close, and
leave to my learned associates the completion of the task, my part
of which, I greatly fear, I have but very imperfectly performed.
To your Honor’s sense of justice I commit the case so far as I am
concerned, expecting from you whose judicial attainments are of so
high a character, a judgment that will reflect honor upon the judi-
ciary of the country, and redeem us from the imputation of having
so far failed to fulfill our Treaty engagements. In the words of
the eminent Judge Jay, let us be faithful to all—kind to all—but
let us be just to ourselves.
March 22nd, 1865.
Mr. Bethune, Q. C., (on behalf of the U. S. Government):—
It has been a matter of much surprise to myself, and I have
no doubt has been so also to your Honor, that in neither of the
addresses of the two learned Counsel who have spoken on behalf of
the prisoners, has there been any attempt either by argument or
authority, to prove that what was done on the occasion here in
question was a legitimate act of war. To supply the place of such
argument or authority, we have been favored with citations from
books, to the effect, that in general it is lawful for one belligerent
nation to kill members of the other belligerent nation, and to seize
or capture their property, and with the assertion, oft repeated,
that in all that occurred at St. Albans on the 19th of October last,
the prisoners acted under lawful authority. In the absence of
such argument or authority, I might be content to rest this branch
of my case, relying on the weakness of my adversary ; but, as I
consider this point of vital importance in the present discussion,
and as I am resolved, to the utmost of my power, to strip the
it in
Fect-
3 the
laws
good
y the
from
nm un-
ad the
il civi-
faken ?
ment
prompt
ance 0
ry:
- ; and
my part
‘formed.
as | am
are of SO
the judi-
f having
words of
all—but
er of the
behalf of
ument or
1 here in
be of such
fons from
pelligerent
bd to Selze
repeated,
ober last,
bsence of
his branch
put, as I
iscussion,
strip the
319
defe ce of even the semblance of legal authority, I must crave the
attention of your Honor for a few moments while I read to you
the opinions of some of the most eminent writers on International
law, on the subject of the rights of nations in war, and as to what
they have a right, or are allowed to do to the enemy’s person and
property.
The Counsel then read from Vattel, book 3, ch. 8, sec. 138,
172, 173, 191, 192; Martens, book 8, ch. 8, sec. 4; Manning, p.
136, 139; Polson, sec. 6, arts. 12 and 13; Woolsey, sec. 119, p.
205, sec. 120, p. 205, sec. 125, p. 214, sec. 129, p. 220, sec. 130,
p. 224, 225, and note; 1 Kent, pp. 91, 92, 93; Lawrence’s
Wheaton, p. 586, 591 to 601 and 626; Halleck, ch. 17, sec. 2,
p. 412, ch. 18, sec. 3, p. 427, ch. 19, sec. 12, p. 456, and sec. 13,
p. 457 :—The case of Burley in U. C.
These authorities establish, that according to the recognized
rules of modern warfare, the property of private persons or non-
combatants is exempt from seizure or confiscation, except in the
special cases of penalty for military offences, of forced contribution
for an invading army, or as an indemnity for the expenses of main-
taining order and affording protection to the conquered inhabitants,
and of taking property on the field of battle, or in storming a
fortress or town. And in all these excepted cases, the action of
armies or parties of men openly acting in the character of armed
enemies is alone contemplated.
Now, in the present case, the facts disclose merely that the pri-
soners and their associates, secretly introduced themselves into an
unarmed town, at a point far removed from the scene of hostilities,
ani there, in the garb of citizens, entered certain banks in open
day; and, when all others but themselves had retired, suddenly dis-
played fire arms, and robbed the banks, and the individual Breck,
who happened at the time to seek admission into one of them, for
the purpose of retiring a note. It is true, that in acting as they
did, they claimed to be Confederate soldiers, and that in the streets
they affected to take prisoners, and discharged their fire arms,
wounding one man and killing another; but, once the booty was
secured, they all decamped on the horses which they had also
stolen, leaving their so-called prisoners free. In all this we see
nothing of the characteristics of war, and fail to discover any other
object than robbery and plunder, under pretence of war. No one
could seriously contend that such an act was per se an act of war.
To all appearances it was nothing more or less than a common rob-
bery, accompanied by a murder, and an attempt to murder. The
only pretension that can be urged is, that in consequence of the
alleged commission and instructions produced by the prisoners’
Counsel, the act was constructively one of legitimate warfare.
320
‘To maintain such a proposition, however, it would be necessary
that the commission and instructions should, at the ‘east, specifi-
cally authorize the commission of robbery and plunder. ‘Now, i in
the so-called commission of Bennet H. Young, he is merely noti-
fied of his appointment as a lieutenant in the “provisional army of
the Confederate States, and in the three letters of instruction, or
what some of the witnesses called details, of the same date, he is
merely requested to organise a body of men “ for special service,”
and “ execute such enterprises ”’ as might be indicated to him,
either by C. C. Clay, jun., in the one case, or Thompson & Clay in
the other,—and, in the alleged instructions from Clay, it is stated,
that he is authorized to act in conformity with a suggestion made
by himself (Young), ‘for a raid upon accessible towns in Ver-
mont.’? The ‘special service,” “enterprises,” and “raid” here
referred to can only be legaily held to mean those of a military
character and such as are recognized in modern warfare, and
cannot, by any ingenuity of argument, be held to extend to the
robbery and plunder of banks and private individuals. But,
even on the assumption that such acts as robbery and plunder
were really intended to be included, I entirely deny the power of
any Government to authorize such acts, and challenge my learned
friends upon the other side to cite a single authority to support so
monstrous a proposition. ‘To afford them an opportunity to do so,
[ would refer your Honor to their favorite author, Lieber. At
pages 16 and 17 of his treatise on guerilla parties, he says:
‘¢ There are cases in which the absence of a uniform may be taken
as very serious primdé facie evidence against an armed prowler or
marander. * * * It makes a great difference whether the absence
of uniform is used for the purpose of concealment or disguise, in
order to get by stealth within the lines of the invader, for the destruc-
tion of life or property, or for pillage. * * * Nor can it be main-
tained in good faith, or with any respect for good sense and judg-
ment, that an individual—an armed prowler—shall be entitled to
the protection of the laws of war, * * because his government
or chief has issued a proclamation, by which he calls on the people
to infest the bushes, &c.”” And at pages 84 and 85 of the “ Trial
of John Y. Beall,’ we find a letter from Dr. Lieber, of date the
5th of February, 1865, in which occur the following significant
remarks, which he says he would certainly propose to add to his
work in a new edition :
‘“* T ought also to have given something on enemies who in dis-
yuise come from the territory of a neutral to commit robbery or
murder, and those who may come from such territory in uniform.
‘6 T do’nt believe that such people, now called by the unacceptable
term RAIDERS, have ever been treated of by any writer.
Cessary
| specifi-
Now, in
ely noti-
army of
ction, or
te, he is
ervice,
to him,
Clay in
3 stated,
on made
in Ver-
1’? here
military
wre, and
d to the
. But,
plunder
power of
‘learned
ipport so
to do so,
ver. At
le Says:
be taken
‘owler or
. absence
guise, in
destruc-
be main-
nd judg-
titled to
ic
people
5 al
date the
ignificant
ld to his
o in dis-
obbery or
niform.
cceptable
321
“ The thing created no doubt in the mind of anyone. The
ave always been treated as briyands; and tt can e
Upon principle that they cannot be treated otherwise.
ever, 80 long as men have warred with one
that is pretty much ag long as there have existed sufficic
to do so—jas any belligerent been jn
tection of the laws of war for bandit
@ vessel, and then rise upon the captain and crew (the
Country of their enemy, and the
mit murder or robbery (the case ‘of the St. Albans r
insolence—I use the term now in a Sci
aiders). The
surdity, and reckless di
entific meaning,—the ab.
aracterize thig
ook a Jurist or a student of history.”
¢ are told, that the object of the raid Was an attack on the
town of St. Albans ; and
reck was a mere inci
iS considered that no
that, on the contrary, the prisoners and their ass
into the to
wn by twos and threes
there to steal #}
without even attempting to bring wi
they affected l
n the supposition, however, that ¢
authority to commit robbery,
a8 & Special act
authorization was legal, I next contend,
ructions speci
ally prohibited any violation
of the neutral territory of Canada 3 and i
ceeded thence, by way of St. Johns, t
thority invoked > and con-
sequently, that the expedition was entirely deprived of the character
of lawful hostility. And i : IS V}
n on the assumption that the so-called
instructions, dated at Richmond, Va., the 16th of
une last, are really all th
at they are claimed to be, they are al-
together insufficient withou
; t the additional instruction, said to hay
emanated from C, (. Clay, jun., on the 6th of Oct
@ assistance of this latter do
awing the act, committed by t
Vv
sophistry, unaided by th cument, can
possibly succeed in withdr,
he prisoners,
asily be shown
nt numberg
laim the pro-
tt, who take Passage on board
case of the
e territory of a Friendly power,
re com-
°
snatiieeiabaremane es
322
from the category of the crime of robbery, in which it stands primd
facie, installed. The argument of my learned friend, Mr. Laflamme,
that the fact alone of Bennett H. Young being a commissioned
officer, and of the other prisoners being Confederate soldiers (even
presuming them to have been such), was sufficient authority, is
entirely at variance with the well-recognized principles of interna-
tional law ; and is completely contradicted, not only by his favorite
author, Dr. Lieber, but likewise by another, whose work he cited
at page 248: I refer to Lawrence’s Wheaton, and specially to the
foot-note at page 248: ‘ Where persons acting under a commis-
sion from one of the belligerents, make a capture ostensibly in the
right of war, but really with the design of robbery, they will be
held guilty of piracy.’ It is manifest, therefore, under any hypo-
thesis, that unless the special instruction invoked amount to a
positive order to commit robbery and pillage, the prisoners were
absolutely without lawful authority.
I now propose to show that the special instruction in question can
have no legal effect whatever in the present case. In the first
place, it is to be noted, that it is to the last degree unofficial and
unauthentic in its character, and is not proved to have been written
on the day it purports to bear date, a fact of vital importance to its
legal applicability to the act in question, especially in view of the
evidence of Mr. George N. Sanders, which, if it does not actually
establish that the document was only written in the early part of
December last (long after the raid was committed), at least taints
it with so much suspicion, that it is quite out of the power of your
Honor to hold im the absence of any direct testimony as to its exist-
ence in October last, that it was executed on the day it purports
to bear date. Mr. Sand ers, it is to be borne in mind, was notori-
ously a confidential agent of the so called Confeder ate States, and
we may therefore fairly presume, that in the conversation he had
with Mr. Clay, when the latter “ said he would leave such a letter
as the paper P” (the special instruction in question), and by
which statement Mr. Sanders adds ‘‘Z tnfer it had not been written
to that time,’ Mr. Clay disclosed all that he knew in favor or
mitigation of the act of the prisoners. It is to be noted, that Mr.
Clay carefully abstained from saying, that Young had his special
authority a writing to organize and carry out the expedition in
question, and merely stated that he would leave such a letter as
would establish his assumption of ‘‘ the responsibility of the raid.”
It is true, that when Mr. Sanders’ attention was subsequently ex-
pressly called by Mr. Laflamme to the date of the letter P, he gives
his opinion that the paper P was not the letter Mr. Clay promised
to leave. As the date was long antecedent to the period of the con-
versation, this remark of Mr. Sanders was, under the circumstances,
ypimd
imme,
sioned
(even
ity, is
iterna-
avorite
e cited
r to the
ommis-
y in the
will be
y hypo
nt {to
ors were
gtion can
the first
Feil and
mn written
ince to its
sw of the
4 actually
part 0
vast taints
y of your
o its exist-
t pw porte
yas notori-
‘tates, and
on he had
ch a letter
), and by
cen written
An fav or or
, that Mr.
his special
edition 1
a letter a6
the raid.”
yuently ex-
P, he gives
romise
of the con-
umstances,
only a natural one to make, and cannot destroy the
tached to his former statement, which had been made after exramin-
ing the paper, as is apparent from the first portion of his evidence
where he claims to prove the authority and status of “C. C. Clay,
whose name is subscribed to document P.’
over, to which Mr. Clay made allusion was one he was to leave.
Now, when it is considered that the prisoner,
duce this document, when he made his v oluntary examination, as the
special authority under which he pretended to act, and that it was
produced at a late stage only of the proceedings, and that by Mr.
Abbott, one of the Couusel Cin whose possession, Mr. Cleary swears
Mr. Clay informed him sometime after the raid it was), and that
no other letter is produced, the legal inference is overwhelming,
that the letter really kept by Mr. Clay was this document P, and
consequently that it had no existence whatever previous to the
There is, in addition, another, and to
my mind fatal objection to this highly important document.
purports to be, in the first place, a letter of marque to commit pil-
lage on land, a species of commission or authority unheard of in
civilized war and therefore for that reason alone wholly illegal
in the next place,—imasmuch as it was written in this ¢ country ,—it
claims for its writer the exercise of sovereign powers within the
territorial jurisdiction of Great Britain!—Not only, however, is
the document for these reasons utterly valueless, but there is
a total absence of anything like evidence that Mr. (
Clay, junior, who thus claimed to exercise such extraordinary
powers, was gifted or clothed with any authority whatever by
the Government in whose name he claimed to act.
cannot be seriously contended, that the allusion to Mr. Clay
in the letter of instructions signed by Mr.
himself Secretary at War) affords legal evidence of his being
possessed of any such authority. In the first place your Honor
does not and cannot legally know Mr. Seddon in the official capacity
In the absence of all recognition by our Government
of the sovereignty or existence as a Government of the so-called
Confederate States, the only person you could possibly accept as
the apparently legal representative of such Confederate States, is
the President or Chief of their executive power.
circumstances, the mere informal and unofficial certificate of au-
thority in Mr. Clay which is claimed to be presumed by Mr.
Seddon’s letter, establishes no legal presumption that Mr. Clay
was really vested with such authority.
Apart from all these considerations, I would now submit with
great confidence, that there is no legal evidence, that Bennett H.
Young was a duly commissioned officer of the so called Confederate
19th day of October last.
he assumes.
value to be at-
The only letter, more-
Young, failed to pro-
Seddon (styling:
And, under any
—=———
eH -
er ee
324
States, on the 19th day of October last, and that the rest of the
prisoners were on that day soldiers, owing allegiance to those
States, and bound in the ordinary discharge of their duty, to take
part in the expedition in question.
The document produced by Young, at the time of his voluntary
examination, and which he calls his ** commission as First Lieutenant
in the Army of the Confederate States,” is a mere letter, signed
by Mr. Seddon as Seerctary of War, informing him that the
President has appointed him First Lieutenant, and further informing
him, that should the SENATE at their next Session advise and
consent thereto, you will be COMMISSIONED accordingly. The letter
then directs him to communicate to the War Department, through
the Adjutant and Inspector General’s Office, by letier, his ‘* ac-
ceptance or non-acceptance of said appointment,’’ and with such
letter to return to the Adjutant and Inspector General the oaTH
herewith enclosed, properly filled up, subscribed, and attested.
This document, at best, is a mere notification, that the President
had selected Young for the post of a Lieutenant, and neither purports
to be nor can be considered in any way to be a commission ; the
very document itself announcing that such commission could only
emanate from the SENATE. ‘Then can it be said, in the absence of
an actual coinmission, to be equivalent to one, secing that the
Senate was not at that time in Session ’—Had your Honor evidence
before you, that the appointment had been accepted by letter, com-
municuted through the Adjutant and Inspector General’s office,
and that with swen letter of acceptance, Young had transmitted to
the Adjutant and Inspector General the oatH that was enclosed,
properly filled up, subscribed and attested, it is possible that this
question might properly be answered in the affirmative. But,
unfortunately for the baseless pretensions of the defence, although
they sent a special messenger to Richmond for the purpose of
obtaining everything that was ‘ necessary to establish the belligerent
character of the prisoners, and that they acted under orders,”’ who
was in that city as late as the 4th of February last, yet that messen-
ger wholly failed to procure more than a copy of the above letter,
and of one of the letters of instruction from Mr. Seddon, already alluded
to, and copies of copies of certain muster rolls, all certified by a Mr.
Benjamin, styling himself Secretary of War, and sealed with a seal
purporting to be the seal of the so-called Confederate States, and
wholly failed to bring any document whatever, much less any act
of confirmation of what had been done at St. Albans, signed or
executed either by the SENATE or 'THE PRESIDENT of these so-called
States. Applying then the well known maxim of law,—de non
apparentibus et non existentibus eadem est ratio, (bearing in mind,
as is abundantly proved, that the SENATE was still in session when
’ the
those
take
ntary
sae
1onec
tb the
rming
e and
letter
rrough
' 66 ac-
h such
> OATH
d.
-esident
yur ports
yn; the
ald only
sence of
hat the
svidence
er, com-
0) office,
itted to
nelosed,
hat this
. But,
\though
rpose of
lligerent
rs,” who
messen-
e letter,
y alluded
by a Mr.
th a seal
ntes, and
any act
pigned or
so-called
de non
in mind,
bon when
325
the messenger was in Richmond, and had been so since last fall,)
your Honor is bound to conclude,—that no acceptance was ever
written and communicated by Young through the adjutant and
inspector general’s office,—that no oath was ever returned to the
adjutant and inspector-general by Young properly filled up, sub-
scribed and attested,—that no commission was ever issued by the
SENATE,—and that both the SENATE and THE PResIDENT wholly
declined, by any act of theirs, to confirm or ratify what is generally
denominated the St. Albans’ raid. So far, therefore, as the pri-
soner Young is concerned, he acted clearly without lawful autho-
rity.
As to the other prisoners, they claim to be soldiers because they
are referred to in the copies of muster rolls, which were brought
from Richmond. It is difficult, owing to the alterations manifest
on the face of these documents, to ascertain with certainty that
any of the prisoners (with the exception of Marcus Spurr) are the
persons indicated in these papers. Giving them, however, (for
argument’s sake), the full benefit of their identity, these muster
rolls, at best, would only prove, that Swager was a Confederate
soldier from the 1st of March to the 30th of April, 1864, and that
Teavis, Hutchinson, and Spurr were such soldiers from the 10th
of September to the 31st December, 1862. There is a total
absence of proof that any of them were soldiers on the 19th of
October last, and, as will be presently shown, they had long pre-
viously ceased to be belligerents.
In connection with this branch of the discussion, attention is
invited to the affidavit made by Young and Spurr, on the 10th of
January last, in support of their application for thirty days’ delay.
In this affidavit the delay is asked, to obtain “ certain testimony
which is necessary and material to their defence, and which they.
are unable to procure in Montreal, or even in Canada.’ And it 1s
also stated, that such testimony would establish, that all their acts
** have been approved of by the said Government of the said Con-
Federate States, as being done in conformity with instructions so
received from said Government, and have been recognised and
adopted by the said Government IN AUTHENTIC FORM, according to
constitutional law and usages.”
The next point I have to submit is, that all the prisoners are
proved to have resided in Canada for months previous to the raid,
and that their chieftain (Young) had, in the fall of 1863 and win-
ter of 1864, been attending the University of Toronto; they all
being escaped prisoners from Camp Douglas. As matter of law,
then, the prisoners by making Canada an asylum, had ceased to be
belligerents ; and inasmuch as the expedition started from neutral
territory, and returned thereto, with their spoil, immediately atter
}
|
t
|
}
326
its accomplishment, the expedition was absolutely unlawful, and,
under any circumstances, created a forfecture of the neutral pro-
tection of this country. On this point I would refer your Honor,
to the following authorities: Wildman, page [59]; 2 Azuni, p.
407; Burlamaqui, 2 vol., pt. 4, ch. 5; Art 19; 8 Phillimore, p.
227; 1 Kent, pp. 117, 118, 119, 120,121; Lawrence’s Wheaton,
pp. 718 to 720, Inelusively, and p. 722 ; Halleck, p. 517, §4, 518,
024, 531, §23, 629, and 631 $4; Llistoricus, pp. 157 and 158;
3 Wheaton, p. 448; 2 Ortolan, Liv. 8, ch. 8, p. 261, 203, 2665 ;
2 Hautetouille, tit. 6, sec. 2, p. 46, 47, “4! ), 93, 95.
The following are some of the "doctrines enunciated in these
authorities :
‘When the fact (of neutral territory) is established, ¢¢ overrules
every other consideration. The capture is done away: the pro-
perty must be restored, notwithstanding that it may actually belong
to the enemy.”
‘“¢ No proximate acts of war are in any manner to be allowed to
oriyinate on neutral ground.”
“The law of war does not admit that the territory of a neutral
people should serve as an ambuscade for one of the belligerents, to
favor his operations of war to the detriment of the other.”
*“¢ Kvery voluntary entrance into neutral territory, with hostile
purposes, is absolutely unlawful.”
‘Troops are not a part of the territory of the nation to which
they belong, nor has their flag any immunity on neutral soil.”
“The party committing the breach of neutrality forfeits the neu-
tral protection.”
“‘ Although it is a technical rule of the Prize Courts, that the
captor can only recognize the claim of the neutral, yet, if the pro-
perty captured in violation of neutral right comes into the posses-
sion of the neutral State, it is the right and duty of such State to
restore it to its original owners. And such restitution extends to
all captures made in violation of neutral rights.”
And Historicus, at pages 157 and 158, says, that this latter
remedy can be claimed by the belligerent whose property had been
captured, and may be “ exercised over property or persons who are
at the tin.o within the neutral jurisdiction.”
I now come to the question of treason, which was raised by 1,
Jearned friend Mr. Kerr. It would suffice to say, that the pris-
oners have wholly failed to establish that the crime here committed
was that of treason. And if they had, the old doctrine of merger
which is here invoked has long since “exploded. On this point, I
would briefly refer to the leading case of Regina vs. Button, et.al.,
11 Ad.; and Ellis N.S., p. 929 and seq. Also to 1 Bishop, § 549,
500 and 501; and to Wharton, p. 256, 257, 768 and 769.
Ii a
id,
0-
or,
p-
p.
on,
18,
58;
BD 3
1¢ese
‘ules
pro-
long
1d to
atral
ts, to
stile
hich
neu-
the
pro-
DS8ses-
te to
3 to
atter
been
o are
Ley
pris-
nitted
rger
nt, I
al,
549,
|
327
Mr. Kerr also contended, that should the prisoners be extradited,
they would be liable to be treated as spies, and tried by Court
martial. It is enough to say of such a proposition, that according
to the well recognized rules of International law, the prisoners can
only legally be tried for the offences for which their extradition is
demanded. 2d Feelix, p. 825-333; 1 Martens, p. 271. Such an
abuse of a national treaty is not for a moment to be presumed, and
if we may judge by what has been done i in the case of Burley, who,
according to the Toronto “ Leader? (a recognised Confederate
organ), has been ordered to be tried for the crime of robbery ‘ on
which he was extradited,’ with an instruction from Mr. Seward
that “if acquitted he will have a safe couvoy out of the United
States,” there is less cause for any real apprehension that the
United States will abuse their treaty obligations.
The last poimt to which I shall specially allude is the one ad-
vaneed by Mr. Laflamme, who seriously argued, that the animus
furandi cannot in any w ay be presumed, and must be proved. The
point is so untenable, and the proposition enunciated, so entire]
opposed to the first principles of criminal evidence, that I shall
refrain from citing any authority to disprove it. The maxim
of law that ‘every sane person 1aust be supposed to intend that
which is the ordinary and natural consequence of his own purposed
act’’ is too well known to need special confirmation by authority.
In bringing my remarks in this protracted case to a close, I can-
not refrain from again urging upon your Honor, that the truly safe
course to pursue in a case like the present, is to hold, in the lan-
guage of all the judges in the Gerrity case, of Chief Justice Draper
in the Anderson case, of Judge Ritchie in the Chesapeake case,
and the four Judges who sat in the Burley case, that the questions
of fact raised by the defence by way of justification of what primd
facie is the crime of robbery, can only be legally tried and deter-
mined by ¢ jury in the country where the offence is committed. I
therefore coufidently claim at ‘the hands of your Honor the commit-
ment of the prisoners for extradition.
Mr. Johnson, Q. C., addressed the Court on behalf of the
Crown. He said :—It was intimated by the Court at a previous
stage of these proceedings, that the Crown, by its law officers, upon
a question concerning the effect of a tre att y, and the application
and efficiency of our own local laws, enacted for the purpose of
giving efficient operation to that treaty, had a right to be heard.
That intimation of opinion so far as I myself, or any other profes-
sional man is concerned, must meet, I ‘apprehend, not only with
realy acquiescence, but speaking my own opinion merely, and
tha; of the learned gentlemen who, on behalf of the United States,
are conducting this ‘prosecuticn, and without knowing, or venturing
eo
hy
NP)
*
ify:
328
to enquire, what may be the notions entertained upon this point by
the learned gentlemen who appeer for the prisoners, [ feel bound
to declare that the exercise of that right under the circumstances,
seems to me to involve a responsibility which public duty will not
permit me, if I would, to avoid; and that in this, as in all other
roceedings taken under the express authority of Canadian Statute
Law, the Crown i is acting, and it is not only its right, but its clear
and inevitable duty, to ack: under a direct responsibility to the
people of thi: country, for the manner in which it seeks to apply
that portion of the criminal law of the land which concerns and
regulates proceedings of this nature. I never could clearly under-
stand how it came to be questioned, even in the excitement of the
earliest stages of these proceedings, (and to judge from the
remarks on that head made by my learned friend, who on the last
occasion of your Honor’s presence here, was the first to address
ou on behalf of the prisoners,) how it continues still to be qnes-
tioned, that the Government of this country has a right to demand
and contend for the execution of its own municipal laws in the
Courts of Justice in Canada. It is very true that a foreign Goy-
ernment is, in the present case, the prosecutor, or more correctly
speaking, the complainant ; (for in strictness there is no prosecu-
tion before us); but that government is a complainant here, not
for the purpose of trial and conviction ; but for an object altogether
preliminary, and strictly defined aud limited by the laws of this
country—the object of ascertaining whether an offence of a certain
description has been committed, and whether there is probable
cause to believe that the prisoners are the persons who committed
it, and, as a legal consequence, are to be tried for it. ‘The place of
trial is not an clement which can in the least disturb my reasoning
upon this point of the case. In the instance of our own subjects,
charged with offences against our own laws, our obligation to com-
mit for trial, where we have the preliminary proof the law requires,
depends on the duty of protection which all governments owe to
their subjects. In the case of crimes committed in a foreign coun-
try, towards which, we are under treaty obligations to surrender
fugitives from justice, the duty of committing in the form pre-
scribed by the Statute, depends of course upon the treaty and the
laws for giving it effect; but the nature and object of the enquiry
are the same essentially in both cases; are directed to the same
essential and important object ; are controlled by the same general
rules ; and finally result in the same important end, viz., the trial
in the country which has cognizance of the offence, of the guilt or
innocence, of the party accused. I have heard much loose talk,
suggestive of still looser notions about neutrality, hazarded on
behalf of men who may perhaps be found, on examination by and
RE TANT ymes res —
Se hte cael dh AE
t by
und
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ther
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and
ate ye
a tea
AES ELS
329
bye, not to have observed its rules very strictly ; but in truth the
laws of neutrality neither debar us from appealmy to our own
Courts to punish those who have committed breaches of these
laws, nor from resorting to those same laws, were we are
required to do so, for the purpose of executing a solemn treaty.
The duty of neutrality is binding, not only on governments, but
on individuals, and it might as well be said, that my learned friends
on the other side are violating the obligations of neutrals by taking
the part of the prisoners, as to contend that I am doing so, by
endeavoring to uphold, as I understand them, the laws of my coun-
try in the present case. This erroneous idea has been carried so
far, that it was made matter of grave complaint, or at all events,
thought worthy of serious assertion, that the chicf law officer of
the Crown telegraphed to a Police Mayistrate, to arrest suspected
parties without warrant. I suppose my learned friend who thought
that this interesting fact had sufficient bearing upon the case to
call upon him to mention it, will not contest that the duty of
apprehending, at the risk, of course, of those who do so, suspected
felons under our own laws is incumbent, not only upon Attornies
General and Magistrates, but also upon all other honest men ;
but he will meet me with the ready answer :—Oh! these people
were Southerners and belligerents. Now the first intelligence pro-
bably which was flashed to the Government over the telegraph
wires, disclosed the only fact that was then apparent, viz.,
that persons at that time in the limits of this country, had broken
its laws, by engaging from here in an enterprise of a questionable
description on the other side of the frontier, and then still further
abusing the right of asylum, by provoking such pursuit as the
people « on the other side would have had the right to make, in the
first heat of their just exasperation. ‘There was of course no time
for discussion or consideration in the hurry and excitement of such
a moment; and I really am at a loss to know how the authorities
would have been justified in instantly presuming, without examination
or enquiry, that this knot of apparent straggling and excited male-
factors were a brave and authorized army returning from a lawful
warlike exploit, unless it can be said that the sudden and disor-
dered appearance of half a dozen bewildered young men, with their
pockets stuffed with stolen money, and themselves bespattered with
mud, and bestriding barebacked horses, whose owners were scream-
ing in hot pursuit, “presented unmistakable signs of a military re-
treat duly executed by the chivalry of the South. ‘The action of
the Government then was necessary—was inevitable. It was what
it should have been,—prompt and decisive ; it was what the common
dictates of duty and honor required, and if they had done anything
less than they did, or had done it in any other manner, they would
330
justly have been amenable to the reproach of indifference, not only
to the faith of treaties, but to the commonest obligation of duty
towards the people of this country. If, may it please the Court,
this case seemed to me to offer any occasion for forensic display, or
in any possible aspect of it, either in what has hitherto occurred, or
may hereafter take place, it could afford any ground for triumph,
or even of satisfaction, I should be deterred from attempting the
one, by the recent and still reverberating efforts and advocacy of
the able and earnest men who have preceded me ; and should be
at once prevented from indulging in anything like the other, by the
reflection that, in a Canadian Court of Justice, there is, and there
ought to be, no possible triumph but the triumph of truth; and in
any possible issue of this enquiry, there must of necessity remain
regret and anxiety on one side or on the other. On the side of
those who complain, if it be found that our laws are powerless, to
give effect to treaty obligations; on the side of the accused, if,
awaking suddenly to their true position in this most grave transac-
tion, they should at last find that human laws are not playthings—
that the obligations of nations are not trifles, and that in applying
to their conduct the surest principles of law, and the most un-
doubted and settled rules of its administration in like instances,
the color they have endeavored to give their acts, fades away at
once in the light of fair enquiry and consideration, and that the
sternest aspect of criminal justice is alone suited to their case.
Any topics of discussion that can possibly arise here, before your
Honor, in the investigation of this complaint, confined as it is by
law, to a preliminary enquiry, whether there is ground to commit
for trial, can only be treated, as I understand the sv-bject, under
three heads. First, the complaint. Secondly, the answer to it;
and Thirdly, the nature and legal limits of your power. I under-
stand the cause of this enquiry to have been regulated by your
Honor’s expressed desire, that all the facts of the case,—all that the
prisoners could reasonably contend to have any bearing on it what-
ever, should be laid before you, in order that you might have all
that could possibly be advanced, as well by way of evidence, as of
argument, in view, before pronouncing on the legal effect of any-
thing that has been brought forward. This course, dictated pro-
bably by a just regard for the rights of the parties concerned, and
certainly evincing an indulgent and humane caution which I shall
be the last person to deprecate, has left open for discussion all
these questions, as nothing has thereby been decided, or intimated,
as to the legal effect of such evidence, or more properly speaking,
such informal information by way of evidence, as has been laid
before your Honor.
Upon the first point that I have suggested as proper for dis-
Be i cin ager iniessy eemoneen oa eee eee eee
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“SA AD RAR po RRM ER PAN BON SALE TITS
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331
cussion here, there is little, I may say nothing whatever to be
observed. ‘The charge of robbery, and the direct participation
in it of all the prisoners, as well as of some others not now
before us, it was of course the duty of the complainant to es-
tablish to the extent required by our own laws, in order to justify
a commitment for trial, if the case had occurred here. That this
has been done is uncontested, and indecd incontestible ; and no
question has been raised or even suggested, that, but for the
exculpatory testimony adduced on behalf of the accused, the
must be committed. If any such pretension could have been
urged, it is not to be doubted that, at the proper time, namely
—when the evidence for the complainant was over, and before
applying for and obtaining a month’s delay to procure witnesses
in exculpation, the able and astute counsel who represent the pri-
soners would not have failed to discharge their duty in that respect.
We come then at once to the consideration of the second point.
What is the answer or defence of the accused to the charge thus
avowedly proved against them, and by what proof and what support
in law, is it attempted to be sustained ? Their answer, I take to be,
in substance, this. The act that you, the complainant have proved,
we cannot deny the fact, is there ; but the character that belongs
to that act is not of the description that you contend for. You say
it was robbery against the municipal laws of the State of Vermont.
We tell you it was lawful war. You claim to treat us as criminals ;
we aver that we are soldiers, and that in what we did we acted as
belligerents, and under lawful authority. This answer undoubtedly
opens a wide field of examination, as well of the law affecting such
cases, as of the particular facts that arise in this. I think, however,
that the great expansion, or subdivision of propositions, which have
been adopted on the other side, may be advantageously compressed,
and restricted to the consideration of this answer, or explanation, or
whatever we may call it, under two heads. First, i is it war, open
and visible, in its external characteristic, and its presumptive
appearance ? And, second, is it war, whether apparently so or not,
under the peculiar circumstances that have been laid before the
Court. As far as external appearances are concerned, to conclude
only from what was described to us by the eye-witnesses of this
proceeding, that it was a warlike operation may, I think, be fairly
said to be impossible. If common sense were not quite a sufficient
guide, by itself, to conduct us to this conclusion, the authorities
already cited by my learned friend Mr. Bethune are upon this point
conclusive. Vattel, Martin, Manning, Polson, Woolsey, Kent,
Wheaton and Halleck concurring, as they have been shown to do,
upon such a point as this, may safely be deemed sufficient autho-
rity, to guide us to the decision of what is, and what is not, consid-
7 rer OE ei
OO ARE ER No a gm
let. hes at 2 - »
sadhibatieacans Ss il
mz 5 ty Pree
x poo
332
ered upon general principles to be an act of war. One of the
learned counsel has, however, upon this part of the case offered
some lengthy observations upon the doctrine of intent. With that
doctrine every one, I take it, who has practised in Criminal Courts,
must be supposed to be tolerably conversant. The most obvious
and easily applied rule upon that subject, I will take the liberty of
quoting from one of the most familiar criminal books, Archbold’s
Criminal Practice and Pleading, 1 vol. p. 392. I quote from the
latest edition of Archbold in two volumes, with Waterman's notes :
** Another mode of judging of the intent is by presuming that the
* party intended that which he effected, or that which is the natural
“ consequence of the act with which he is charged. If the natural
““ consequence of his act would be the death of another, a jury may
“¢ fairly infer from the act that it was done with intent to kill. If
“ the natural consequence would be to defraud another, a jury may
‘¢ fairly infer an intent to defraud.’’ Now let us apply this common
and obvious doctrine to the case before us, or rather to that parti-
cular part of it I am now discussing. What is the natural conse
quence of robbing Mr. Breck? Is it that the national power of the
United States is prostrated, or in the remotest manner affected by
it. The natural consequence is that Mr. Breck loses his money ;
but it requires a great deal of imagination to conceive, and a goor.
deal of ingenuity to explain, how that fact tended to exhaust the
national resources, or attack in any manner the national existence.
In touching upon this part of the case it is impossible not to feel the
necessity of imposing some limit to what may, with any appearance
of reason, be alleged to be an act of war. If these prisoners,
instead of using violence and terror to get this poor old man’s
money, had used stratagem; in other words, if instead of openly
robbing him, they had picked his pocket, would that be contended
to be an act of war too? I must suppose from the course of the
argument on the other side, that it would be held ; and indeed it
must be so held, there can be no doubt, if the act taken by
itself, or merely accompanied by the declaration of the thieves,
that they, as Confederate soldiers, can be held to confer
upon the actors the conclusive character of persons performing a
lawful warlike exploit. The truth is that, though all authorities
denounce it, the practice of taking private property in war, or of
inflicting unnecessary injury upon unarmed and inoffensive indivi-
duals, is a practice (and that is the utmost that can be said for it)
that may be admitted to have been in some cases, an incident and
a forbidden incident of war; but it is not, and never with reason
can be contended to be, an act of war in its own nature. I gather
from some part of the testimony—lI forget whether it was in this
case of Breck, or in some of the previous proceedings—that there
BNE EET OTT em ra
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of the
offered
th that
Courts,
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hbold’s
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notes :
hat the
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earance
risoners,
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lent and
h reason
t gather
in this
at there
SPLIT ERO MICE AS a
ih ie ain ni RA a a a a al as et ;
333
was, at or near St. Albans, an arsenal, or some such national
structure, and in the town itself, one and only one, soldier. ‘These
opportunities of glory and destruction are, however, neglected.
The arsenal and the soldier are, strange to say, both untouched,
and poor old Mr. Breck is made to play a part in the history of
modern war, which must have surprised him quite as much as it
has surprised me, and the rest of the world, who had perhaps
formed somewhat different notions of warlike achievements and
martial glory. I will not stop now to discuss very minutely the
contents or the dates of the various documents that have been put
in on behalf of the prisoners. Their legal effect I shall notice when
I come to another part of the case. The question, too, of whether
these documents prove anything at all ; whether Young can, under
the circumstances contended for, be considered to have held a com-
mission at all, and whether the others, all proved to have resided in
this Province, for some time previous to this outrage, had really
preserved the character of soldiers, supposing them to have had
that character previously, and can be considered to have been so,
in any intelligible sense, at the time this offence was committed ;
these are points which I am quite content to leave where they were
left by my learned friends who are acting for the United States
Government. To notice some of them, might perhaps be said to be
descending to small points. It may be so; and yet the necessities
and exactitude of legal proceedings may require it. What indeed
were the points upon which all the celebrated modern cases of ex-
tradition have at last turned, except points of the narrowest and
most technical description ? Take Bissett’s case; take Anderson’s
case; take the famous case of the Chesapeake ; or come down still
later tu the case of the Gerrity. Upon what points were they all
finally disposed of, but on those of the very narrowest form? The
three first for defects—which may almost be called clerical defects
—in the warrants of commitment ; and the last upon the not much
broader ground, that the piracy alleged and proved, was not the
particular kind of piracy intended by the treaty. I feel, however,
that upon this part of the case it cannot be necessary to enlarge ;—
that the idea of this enterprise presenting in itself any sign of law-
ful war, is untenable, and utterly unwarranted by the evidence.
We have all heard, both in fable and in history, of instances of
self-arrogated importance: we have read in our youth of the fly
upon the wheel, and the frog that endeavored to distend its dimen-
sions to those of the ox. We have read, too, in modern history, of
the tailors in Tooley Street, who called themselves the people of
England, and proceeded to alter the constitution of the empire ;—
but none of these instances can excel in ludicrous extravagance the
pretence that, in going to a bank, in the middle of the day, in a
334
peaceable village, and easing an old gentleman of two or three
hundred dollars on the threshold, the prisoners can be presumed,
or believed to have acted as a military foree—having lawful au-
thority from a brave and civilized people to do what they did. We
must remember, too, that we are here dealing with a question of
proof, and not of presumption. It will not be presumed that war
was being made a thousand miles from the seat of actual hostilities.
We must have proof—certain and undoubted proof—to take away
the criminal nature of the act, before we can say there is nothing
left for a jury to try. The black color, so to speak, of the offence
imprinted, must be completely washed away before we can refuse
legal effect to the complaint that is supported as far as the law re-
quires.
IT come now to the second and most important question arising
under this head of enquiry. The idea that the act complained
of presented in itself any of the characteristics of lawful war
having been di.zposed of, there remains the very important consid-
eration how far the peculiar circumstances proved on the prison-
ers’ behalf tend to give it that character; and whether, indecd,
the circumstances so established, do not conclusively deprive the
enterprise of any possible belligerent character, that might other-
wise have been contended for. It is not to be expected that the
Government of this country can view with indifference, the fact so
clearly established by the defence, and the evidence in rebuttal,
that this enterprise received its pretended authority within this
Province, and proceeded directly from our frontier to St. Albans
by the ordinary line of railway. The authority put forward is the
authority of Mr. Clay. The date of that authority, as far as it can
go for anything, appears on the face of the document itself to
be 6th October, 1864. It is directly proved by two witnesses
brought up by the prisoners, viz., Mr. Sanders and Mr. Clay,
that Mr. Clay resided in Canada from June to December of that
year; and from other particulars mentioned by these two witnesses;
it is abundantly evident that Mr. Clay, though for obvious reasons,
the place has been omitted to be named, in the way usually prac-
tised iu dating documents, was at that time either in Quebec or
Montreal, and probably in both, as occasion might require.
We have, then, at the very outset of all, a fair consideration of
this case, the fact that it proceded from our country, and I
say that this fact is not only of great importance and significance in
itself, but absolutely of decisive import upon the merits of the de-
fence or explanation attempted by the prisoners. The Court will
remember how, in their voluntary examinations, the prisoners all
laid stress upon the assertion that they had violated no law of this
country. It will be remembered too, how in addition to this aver-
Se
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————————
PANO
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835
ment, now proved by their own witnesses to be untrue, some of
them were advised to reproach this country and its government
with what they were pleased to call its unexampled conduct in this
matter. It is far from my wish at this time, to say anything un-
necessary, and for the mere purpose of aggravating their present
position, but it is a rule of law, which I am obliged to invoke, that
though a party accused can prove nothing in his own favor, by what
he may say on his voluntary examination, yet that anything he
does say, if afterwards contradicted, must have the gravest effect,
on the degree of confidence to be placed in his account of the
transaction. The prisoners were made aware, no doubt, of the im-
portance of this element in their case, not so much with a view of
avoiding their direct responsibility to the criminal laws of this
country under a prosecution for the misdemeanor in itself; as on
account of the direct and decisive bearing that fact must necessarily
have upon the lawfulness of the enterprise, which they were eoing
to set up by way of answer to the case made out avainst thei.
And well may these prisoners have felt that anxiety, and adopted
that precaution ; for even without the legal knowledge which they
were in a position to command upon this subject, their own astute-
ness might readily have suggested to them, that mankind would be
suspicious of the origin of such an extraordinary proceeding ; for
it was hardly for an instant to be conceived that without the crimi-
nal connivance of some one, or more than one in this country, and
without the security of a neutral territory to retreat to, such an
enterprise would ever have been entered upon at all, or that sane
men would ever have contemplated it. Their own good sense
too, and their own information,—for they are persons of some
education,—might have informed them that, leaving positive law
entirely out of the question, there was a plain and unanswerable
reason, in the very nature of things, why even the most just and
lawful and solemn war should lose its character, and become
mere brigandage when directed from the shelter of a neutral
territory. It is because nations who have the misfortune to be in-
volved in war, though they may be expected to be armed at all
points from which they may be lawfully attacked: upon the frontier
of the enemy; upon the open sea; and even at any point of desert
or uninhabited country; they could not be expected,—the laws of
war and of common civilization forbade them taking the precau-
tion to be armed along the common frontier of a friendly power.
The law of nations authorized, and prudence called upon them to
be prepared at all these other points ; but honor forbade them to
suspect a friendly power, or to distrust his power, to maintain his
own laws. They were called on to be prepared for the surprise and
even the treachery of their enemies ; but not for the acquiescence,
836
or even the apathy of their friends. Clear as these principles un-
doubtedly are in themselves, they are still more clearly enunciated
by writers on the law of nations, and by judicial decisions of the
highest authority.
The question of the absolutely unlawful character of even an
apparently warlike expedition starting from a neutral territory,
has been evaded by the counsel for the prisoners, and instead of
the question which arises in this cause, and arises under the evi-
dence adduced by themselves, being made the subject of discus-
Sion, another question, and one which has nothing whatever to do
with this case, has been raised and discussed by those gentlemen.
The question we are interested in discussing here is, whether, origin
and progress in, and emanation, from neutral territory, deprived an
expedition of lawful belligerent character, so as to nullify it, in the
present proceeding, in a neutral country, where its lawfulness is set
up to destroy the character of otherwise proved felony. The ques-
tion which they on their side are desirous of treating, is whether, as
between two belligerents, the one making lawful war in the other’s
territory, the soldiers so lawfully making war on its soil will be held
in the Courts of the invaded country, when they are tried, to be
ordinary criminals.—This latter question, the solution of which de-
pends entirely upon evidence at the trial, is the one that was dis-
cussed in McLeod’s case. The only case, I believe, in which
it ever received a judicial decision, and that decision rendered
by Judge Cowen, was to the effect that they were not an-
swerable. I am quite aware that in a review of this deeision
published in the Appendix to the 26th volume of Wendell’s Reports,
the contrary opinion is ably supported. The responsible judicial
decision was that of Judge Cowen, acting as a Judge of the Supreme
Court of the State of New York. The review of that opinion is
from the pen of Judge Talmadge. The Judge, acting as such,
decides that, even in such an extreme case as that of Alexander
McLeod, the particulars of which are too well known to require
repetition, the party is liable to the ordinary eriminal courts. ‘The
reviewer says he is not. It may seem, that the Judge was wrong,
and the reviewer right ; but still the decision is there, legally
unreversed. Admitting, however, for the sake of argument, that
such is the case, what has the principle, in either view of it, to do
with this case ? ‘The question there discussed, is, whether the sol-
diers of a lawful war-making power are liable, in the enemy’s terri-
tory, where they go to make war, to be treated as private criminals.
This is so clearly a matter to be discussed between the two powers
engaged in the war, that I feel at once the impropriety of detaining
the Court by any reasoning to prove it so. Whether that question
will operate effectually or not for the acquittal of these men, in the
|
|
|
St AI rn
ee ee
IRIS STAN AAA sey
Se Taner ere Tk ect
les un-
iciated
of the
ven an
rritory,
tead of
he evi-
discus-
or to do
tlemen.
r, origin
‘ived an
t, in the
33 1S set
he ques-
other, as
> other’s
be held
d, to be
rhich de-
was dis-
n which
rendered
not an-
deeision
Reports,
judicial
Supreme
pinion 1s
as such,
lexander
require
gs. The
S wrong,
, legally
ent, that
it, to do
the sol-
ys terri-
iminals.
D powers
etaining
question
Ny in the
337
State of Vermont, when they get there; in other words the State
of the Law upon this subject in Vermont, is a consideration not to
be dealt with, until the facts are ascertained in those Courts. To
the facts so ascertained the law is to be applied, when the Jurisdic-
tion of those Courts comes to be exercised at the trial, and what-
ever may be our opinion upon the merits of the dispute between the
judge and the reviewer, it is quite certain that that question can
never be decided while the prisoners remain here. The strict po-
sition of the prisoners upon this point is absurd and illogical in, the
extreme. They say, we have an excellent defence in the courts of
the United States, upon the issue of whether we are guilty or not
—a pure issue of fact whether we are felons or lawful soldiers ; but
do not give us up to the power which alone can try that question
—the country where the facts occurred, because it is bound to de-
cide in our favor! The position of the United States government
on the other hand is logical and conclusive. It says ; certain men
have committed one of the offences mentioned in a treaty subsisting
between us and the sovereign power of Great Britain. They deny
having done so; they advance statements depending upon a multi-
tude of facts which we are willing to try in the ordinary courses of
justice ; but we cannot try them while they remain in Canada. Let
therefore the promise of the nation made by treaty be fulfilled, and
in due course, a trial of all these points shall be had. This perhaps
would be the proper place to interpose a word upon the distrust
either felt or affected in some quarters for the United States tribu-
nals. I had always imagined as a lawyer that the country in ques-
tion was singularly free from imputations of that description. Cer-
tainly in the matter of the execution of this treaty we, on our side,
have had no ground of complaint, and in the latest case that has
occurred in England under it, we all know the high terms in which
his Lordship the Chief Justice extolled the administration of the law
in the United States of America. All this however I feel to be
beside the question, and beneath the attention of this Court. Of
course if the nations have no confidence in each other, they can
agree to abrogate the treaty; but while it subsits, it is merely ap-
pealing to the worst and lowest of men, to talk of abuses which all
educated people know there is not-the slightest chance of arising,
and which are no concern of ours, at all avents until they do. If
we had not confidence in them, we should have had no treaty with
them ; and its very existence implies that we, as a civilated nation,
are satisfied of the justice of their Laws.
If the prisoners were tried in a manner at variance with the or-
dinary course of criminal procecdings in the United States, or if
acquitted, they were afterwards retained as prisoners of war, either
fact would be a good ground for national remonstrance and com-
WwW
— —— a cree i
a SS = _
=>
-
_s
SSS
aoe em ae ee
==
338
plaint, or for putting an end to the principle of extradition between
the two countries.
Sir Cornwall Lewis observes with reference to this: “ The
“¢ assumption upon which a treaty of extradition rests is, that a
‘* civilized system of criminal law is executed with fairness, and
‘¢ that the cases‘claimed for surrender are those of offenders really
*¢ suspected of the crimes with which they are charged. If a dis-
“¢ honest and colorable use were made of such a ‘treaty ; if, for
‘¢ example, a political refugee were charged with one of the enu-
“ merated offences for the purpose of bringing him within the
‘¢ power of his Government, and if, when he had been delivered up,
‘¢ he was punished for a political crime, itis clear that a system of
* extradition could not be maintained with a government which so
** perverted the treaty.”
We cannot, therefore, assume the prisoners will be otherwise than
fairly and justly tried ; and even if we did, we have no right for
that reason to evade this clear obligation of the treaty, and to
constitute ourselves here the tribunal which is to try the alleged
offence, thus superseding the proper jurisdiction of the Courts of ‘the
United States, within whose territory the act charged was done.
All after considerations connected with any anticipated abuse of
the Treaty must be left to the Executive Government, and cannot
guide the action of a court of justice.
T’o remove any influence, however, which such an argument
might have on the mind of the Court, it may not be inappropriate
to say that there is the clearest authority of writers on international
law, that the prisoners could not be tried except for the offence with
which they are charged. Felix says: “ I] est aussi de régle Vin-
* dividu dont l’extradition a été consentie ne peut étre poursuivi et
** jugée que pour le crime a raison duquel son extradition a été
** obtenu.”’
Addressing myself, then, at this moment, directly to the question
whether the circumstances proved in this case clothe the transac-
tion with the character of lawful war, I beg leave to read, almost
without comment, some extracts I have made from the most esteem-
ed authorities upon international law. Upon one preliminary point,
it is to be observed that Judge Cowen and Judge Talmadge, his
critic, both agree. ‘To warrant the destruction of property, or
the taking of life,’ says Judge Cowen, “ on the ground of public
war, it must be what is called lawful war by the law of nations.”
** All will agree,”’ says Juge Talmadge in his review, “ that the
war which affords impunity to those engaged in it, must be a lawful
war.” Vattel 18, 3, c. 4, sec. 67, says: “a war lawful and in
form is carefully to be distinguished from an unlawful war entered
on without any form, or rather from those incursions which are
———
> RR he ee ae
ween
‘The
hat a
, and
really
a dis:
if, for
e enu-
in the
ed up,
tem of
1ich 80
se than
wht for
and to
alleged
3 of ‘the
done.
abuse of
1 cannot
-gument
propriate
national
nce with
vale | "in-
rguivi et
na été
juestion
transac-
, almost
estcem-
ry point,
dge, his
hat the
lawful
and in
entered
ich are
a
hoes.
ee on without lawful authority or apparent cause, as
’ y y . € 1 } y }
likewise without formalities, and only for havoc and pillage.” 'T oi
is no mistaking the meani thi Cae nee
ashe g the meaning of this language. If the prisoners
ole ip yh) van ee
any aie here, they must show at least, that they had
7 is authority for what they did. ‘Lhe act of war they vol t
a d them must be a lawful act by the law of nations. Naw. to
Y » ATA »
egin with the pretended authority of Mr. Clay, let me ask ee
was the power of Mr. Cl i a
ere aa r. Clay, on Canadian territory, to give lawful
satall? But it may be said he was bound to obey the au
thority of Mr. Seddon, the Secretary of War. In the argument of
;
Attorney-General Hall, in the McLeod case, 25 Wend., page 53
a meee Dee with the apparent assent of ‘Blacks ae
1e quotes :— It is not a true position,” says the Ato ,
ead “+ that he was bound to obey his sive bey,
nara le says, “ an act of Parliament contrary to the law of na-
ns 18 void.” How much more the act of a Sovereign ? or le
a 2 ae the Confederate States, or a Seatac
Mr. Seddon? ‘ Has it ever been the practice,”’ asks Ji i
evil Sa Wend., page 532) ‘as collected from the ory Of
, for one nation to send such orders to be caccuted tl
territory of another ¢ Has such an order ever been cor sidered
valid? A Sovereign,” says Vattel, B, 3, C., 2. section 3 he
no right to command what is contrary to the law of uatio At
page — a Cowen observes: ‘** No writer on the eae tian
ver ventured the assertion, that one or 2 -
ilo any hostile act ayainst another ee il ae Trt be
not a plain deduction from common sense, yet on principle ‘ ich
publicists universally agree, all rightful power to har = ec aa
oe by their enemy droppe eu Jrom their hands, the moment
us y ntered a country with which their sovereign was at peace.’
: 1ese words were applied to McLeod and his associates their er
eo Dee in that case is not questioned by J idee Ulslmnadge
reece paeereerprree ey Cert eres
iat po
Let us, therefore, with the sane aieussol these Gone. pete
same language to this case, and ask if all power of acting ofa oy
xi ig :
eet ee
adian territory ? Most undoubtedly, if tun ceca steel Can
Ce and this is reason and 1 mace te Tae
Serco suet ceased from that moment. Judge Cowen
es as follows: —“‘ No excep ion can be made consistent]
he raster: safety. Make it in favor of the civil pared
ee 0 apnea is State, and your territory is open to its con-
es; in favor of their military, you let in their soldiery ; in
oa
=
340
favor of its sovereign, and you are his slave.’’ How is it possible
then, without proclaiming that we have ceased to be neutrals, and
have deliberately, and as a nation, espoused the cause of one of the
belligerents, to hold that we can lawfully allow to be executed on
our soil, whether by means of Mr. Clay, or any other person, the
orders of Mr. Seddon or even of Mr. Jefferson Davis himself, and
if we do so, shall we not cease to be an independent and neutral
power, and in the words of Judge Cowen, become the slaves of
those to whom we thus tamely submit ourselves. One or two
things must be published to the world by the judgment which your
Honor is bound to pronounce on the present complaint. The Court
must decide that the British dominions are neutral territory, as far
as regards this war, or that they are not. To decide that they are
not, would be to contravene the public law of the realm, and the
express command of the sovercign. ‘To decide that they are
neutral, involves without the possibility of escape from the conclu-
sion—the necessary conscquence that this act authorised, crigina-
ting and proceeding from, here, is deprived by that circumstance
alone, of the character of lawful hostility. Vattel B. 2,¢. 7, s. 84,
says, ° It is unlawful to attack an enemy in a neutral country, or
to commit any other act of hostility.” ‘* A mere claim of territory,”’
says Sir William Scott, is “ undoubtedly very high. When the fact
is established it overrides every other consideration,” (5 Rob.
Rep. 20 1) and he refused to recognize a capture of an encmy’s
ship, within a marine league of our coast.‘ We only exercise the
rights of war, in our own territory,’ says Bynkersheek, “ or in the
enemy’s or ina territory which belongs to no one. B. 1c. 8.
«‘ There is no exception” says Chancellor Kent, ‘“‘ to the rule that
every entrance into neutral territory with hostile purposes is abso-
‘lutely unlawful. 1, Kent. 119, 4th ed. Judge Talmadge’s review,
so often cited (p.678 of the 26 Wendell (admitting with Judge Cowen,
that acts unlawful per se are alike unlawful in the Sovereign, and in
the subject, adopts also Judge Cowen’s language, and states the rea-
son to be, ‘* that where he has no authority, there he is no king, for
wheresoever the authority ceases, the king ceases, and becomes like
other men, who have no authority.”” The language of Chancellor
Kent, which has been cited by my learned friend Mr. Bethune, to ex-
lain the citation of the same author, at the same page, made by my
friend Mr. Kerr, is equally plain and explicit. He cites the
authority of Sir W. Scott, and says:—‘‘ In the case of: the twee
Ge breeders (3 Robb, 386) it was explicitly declared that no prox-
imate acts of war are in any manner to be allowed to originate on
neutral ground ; and for a ship to station herself within the neu-
tral line, and send her boats on hostile enterprises, was an act of
hostility much too immediate to be permitted. No act of hostility
———
<5 ST
ana aig 2p
ssible
;, and
of the
ted on
n, the
if, and
eutral
ves of
or two
h your
» Court
,as far
hey are
and the
rey are
conclu-
orivina-
mstance
i, 8. S4.,
mtry, oF
rritory,””
1 the fact
(5 Rob.
enemy’ $
bycise the
or in the
B.1c¢.8.
rule that
5 is abso-
g review,
re Cowen,
im, and in
the rea-
king, for
omes like
ne, to ex-
le by my
cites the
the twee
NO prox-
hostility
341
is to be commenced on neutral ground. No measure is to be taken
that will lead to violence.’ ‘ There is no exception to the rule
that every entrance into neutral territory, with hostile purpose, is
absolutely unlawful. The neutral border must not be used asa
shelter for making preparations te renew the attack. This would
be making the neutral country directly auxiliary to the war, and to
the comfort and support of one party.” 1 Kent, p. 120. The
same doctrine is contained in Wheaton, p. 715, and at p. 717 of
the same book, the author, admit‘ing that it does not apply to re-
mote and innocent uses, such as procuring provisions, lays
down that it is in no case to extend to any proximate act of
war whatever. In the present case, not only was a proximate act
of war committed, but the direct and only origin or authority
for this enterprise is proved by the prisoners themselves
to have emanated fro.a a person residing in this country. If
any doubt could exist upon this part of the case, that doubt
would surely be set at rest by a reference to the recent case of
Burley decided by the two Chief Justices of the Queen’s Bench and
Common Pleas, and two Judges in Upper Canada. — This case is so
recent, so directly in point, and so decisive of the question Tam
now discussing, that any extended or argumentative reference to
it I feel to be quite uncalled tor. The vist of that case, however,
the point of all others, upon which all the judges clearly indicated
a perfect unanimity of opinion, was exactly the point which I have
been endeavouring to lay before the Court, in the present case,
viz.: that the inception, or carrying out in any manner of such a
project from neutral territory of itself deprived the enterprise of a
character of lawful hostility. So solemn and decisive a judgment,
pronounced by judges so deservedly eminent, and after the fullest
argument of every point, which the self-respect of the profession
in Upper Canada suffered counsel to raisc, was felt, no doubt, by
my learned friends, to be a matter which they could not refuse to
notice; but which at the same time, they were quite unable to dis-
pose of, in the ordinary way of treating judicial decisions ; so
instead of having any answer attempted to the reason, or the principle
of that decision, we have been obliged to content ourselves with
hearing the Bar and the Bench of Upper Canada assailed and de-
preciated in a peculiar style, which I trust those learned persons
will not believe to be usual in the practice of the profession, in this
part of the Province. But apart, may it please your Honor, from all
Judicial decisions : apart from all ex prefesso writings and opinions,
we need not go further than our own criminal law to ascertain tne
true character of such enterprises undertaken upon our soil, and to
satisty ourselves that they are plainly denounced as unlawtul. ‘That
under the common law in some cases, and by express statute in others,
2
they are subject to indictment. IPf then this be law, there is an
end to this part of the case; and it remains to be shown how Mr.
Clay by coming into our country and setting its laws at defiance :
how by coming here and in his own person committing an indictable
offence, and as respects his associates, causing them to commit the
like offence, he can confer upon his actions, or upon theirs, the
character of lawful authority. It remains to be shown, I say, that
what in the cases of all persons indiscriminately, whether foreigners
or not, is directly forbidden, declared to be unlawful, and punished
accordingly, becomes lawful, when instigated by Mr. Seddon, and
actually pr: ‘actised by Mr. C lay and his accomplices, the unfortunate
men before the Court. Before t taking leave, however, of this part
of the case there is a very high authority, and a very recent one,
which I find printed in the pamphlet containing the trial of John
Y. Beall. It is the authority of Dr. Licber contained in a letter
read by the Judge Advocate upon that trial, to establish points not
arising i the present case, it is true; but it incidentally touches
upon the point we are now considering, and in the following words
disposes of the legal character of such enterprises as this upon
general principles: ‘* I ought to have given something on enemies
who in disguise come from. the territory of a neutral to commit
robbery or murder, and those who may come from such territory in
uniform. I do not believe that such people now called by the unac-
ceptable term “ raiders”? have ever been treated of by any writer.
The thing created no doubt in the mind of any one. They have
always been treated as brigands, and it can easily be shown upon
principle that they cannot be treated otherwise. Never, so long as
men have warred with one another, and that is pretty much as long
as there have existed sufficient numbers to do so—has any bellige-
rent been insolent enough to claim the protection of the laws of war
for banditti who take passage on board a vessel, and then rise upon
the captain and crew, or who gather in the territory of a friendly
power, steal in disguise into the country of their enemy, and there
commit murder or robber y- ‘The insolence—I use the term in its
scientific meaning—the absurdity and reckless disregard of honor
which characterize this proceeding fairly stagger a jurist or student
of history.”? ‘Thisis the language of the eminent Dr. Lieber, an autho-
rity admitted to be of the highest character by my learned friend, Mr.
Laflamme, who was himself the first to cite the work in support of the
position which I do not contest, that as between armies in the.field, the
laws of war alone apply. ‘The insolence or non-insolence, that is to say,
the unused and unheard of character of such proceedings, is doubtless
the reason why no writer, as Dr. Lieber says, has ever considered
it worth while to waste paper or time in describing, or in an
manner dwelling upon, what is in itself obviously unjustifiable.
SEES ot ONL AOLIENT EIS Yee A oe
is an
vy Mr.
ance :
ctable
it the
3, the
r, that
igners
nished
n, and
tunate
is part
nt one,
{ John
. letter
nts not
touches
+ words
Is upon
enemies
commit
ritory in
re Wnac-
writer.
ey have
rh upon
long as
as long
bellige-
s of war
se upon
friendly
d there
m in its
f honor
student
autho-
nd, Mr.
‘t of the
eld, the
sto say,
bubtless
sidered
in any
tifiable.
A NOAM LEAR
3438
Here then I feel I may safely leave this most important and deci-
sive portion of the prisoner’s case. IT bey leave now to address
inyself to a part of this case hardly less important than the preced-
ing. What is the duty of the examining magistrate in such cases 4
What is the nature and extent of his power 4
this enquiry it is not necessary to assume these men to be guilty.
The complaint only affirms that there is an accusation against then.
for which they are Hable to trial in the United’ States where the
act was committed. What then is the duty of the magistrate ?
Sir Cornwall Lewis puts it thus cle arly and explicitly: “ In
order to render a system of extradition effectual, the amount of
proof, and the formalities required, should be as small as is consis-
tent with the prevention of abuse. The essence of the system is,
that confidence is reposed in the forcign government and in its
administration of crimical law. The assurance of that government
ought to be the chie’ guarantee sgainst abuse. If, therefore, it
claims any fugitive through the eccredited diplomatic channels 5
amd gives a reasonable proof tnat there has been a proper investiz
gation by the officers of jolice ait the fur ctionaries conducting the
preliminary stages of judicature, and the his investization had ed
to the conclusion that the person : question is gmilty of the offence
charged against him, it is desire '.'0 that the exti.. ition should take
place, upon proof of identity of she party, and without any full
investivation, such as a magistrate would make for the es . itment
of a prisoner in this country.
And again he says: ‘ The recognition of the criminal law of a
forcien state, and the confidence in its regular and just administra-
tion, “which is implied in a system of extradition thus carried into
effect, 1s paralleled by the established practice of this and other
countries with respect to the eivil law.’
In fact the rule, thus cl varly stated, has been followed in practice
wherever questions under the Treaty arose.
In the Anderson case, Chief Justice Draper, with reference to
the case of a party ac “sed of murder, in order to justify it, observed :
“Tf there is a quest» of fact to be tried, [ apprehend he must be
surrendered, as such a question can only be tried in the country
where the fact arose.”
In the C hesajeake case the same question was incidentally dis-
posed of. 'T.2 counsel for the prisoners was proceeding to comment
on the evidence of authority from the Confederate “Governme nt.
when Mr. Justice Ritchie observed: ‘¢ Assuming, as you must do
at this stage of your argument, the correctness of the proceedings
against the prisoners ; and the mayistrate’s Jurisdiction of the offence,
do not these questions fall within the province of the Superior C ourt
on the trial of the prisoner Is it not the magistrate’s duty now
For the purpese of
a cae aces ee eee eae nee wpm ps
7 eee “ = ae ‘i = oo . e peta
NEE ne oe sae cp mpg sh iy at ean Sito
ote SR SPO Sy SEBEL sm 5 3 SR rs Aah? ae a
> oe . ae a es Sty ~ =
ee
SERS Ses ead tes ane
344
merely to see if a preliminary case is made out? =I think we must
act in this case just as if it was an offence committed here. The
question is, would I, on the evidence, commit for trial in this
rate ? If so, must I not commit the parties for extradition ?
Counsel.) ‘* In Anderson’s case a prima facie case was made
sar but the prisoner was discharged. And so in U.S. ys. Palmer,
4 Curtis, 314. Parker is found in command of the Retril sution,
and Braine and Parr acting under him.”
(Ritchie, J.) I think these questions are proper fora jury, and
not for the magistrate. His duty is simply to deal with this case
as a magistrate would deal with an offence to be tried in this coun-
try.
These principles, se *clf-evident, have formed the invariable rule
of action by which the American Courts and judges have guided
themselves.
In the recent case of Muller, heard before Mr. Commissioner
Newton, the prisoner applied for permission to adduce evidence,
to establish an alibi. The following objection was taken by the
prosecution :
The evidence is such as would plainly require the commitment of
Muller for trial if the offence had been committed here, and it re-
sults that a certificate leading to his extradition, that the case may
undergo an investigation in ‘England, should be granted.” And
on this the Commissioner, in the following language, applied the
law clearly applicable to that and every other case arising under
the Treaty: ‘‘ Having heard and carefully considered the testi-
mony, and weighing it in my mind, that there is not sufficient evi-
dence for me, sitting here simply as a magistrate, and the duty for
me being simply to determine, not whether the man is guilty or
not, but whether there is sufficient evidence to require that he may
be committed, i in order to afford an opportunity at the place where
the crime was committed of proving his guilt or mnocence. Jt és
not necessary for me to say whether IL would convict the ian, and
sentence him to be hung, were that evea in my province, but the
duty that I have to perform is simply this: first, has there been a
crime committed? If committed, is there probal ile cause from the
evidence adduced to say that the accused is the party who has
committed the crime? Now it appears to my mind clear, that
looking atit in that light—in the light of probable cause,—it is very
plain that there is such cause. I do not desire to sit in judement
on this man, but I wish it were in my power to discover any evidence
in the case whereby I could withhold the certificate ; but I am
bound to say that the combined circumstances, to my mind appear so
clear and distinct, that upon the question of prob able cause I can-
not have any doubt.”
must
The
— this
n?
made
Jmer,
ution,
y, and
3 case
coun-
le rule
vuided
ssioner
dence,
by the
ment of
d it re-
se may
And
icd the
under
e testi-
nt evi-
uty for
ulty or
ie may
where
It is
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345
In the still more recent case for murder on the high seas, on
board the British brig, “ Raymond,” in which the prisoner desired
to show by evidence that the act was justifiable, the same judge
applied the like clear principle, as follows: ‘ Even admitting that
evidence of justification could be legally received (of which however,
under the Treaty I have great doubt), it is not for me to determine
what effect it might or might not have upon the minds of a jury ona
final hearing or trial for murder. Under the Treaty Iam only to de-
termine the question of probable cause. The simple question here to
be decided is whether there is sufficient probable cause to justify
his return for trial to the country within whose jurisdiction the
crime is charged to have been committed.
In the case of Ternan and others for piracy, alleged to have been
committed in seizing the steamer “ J.L. Gerrity,” in the month of
November, 1863, the judges of the Queen’s Bench in England,
though differing in opinion on the question whether piracy, jure
gentium, was within the Treaty, did not controvert the same prin-
ciple laid down by Lord Chief Justice Cockburn: “ No doubt,
prima facie, the act of seizing the vessel, saying at the same time
that it is seized for the Confederates, may raise a presumption of
such an intention; but then all the circumstances must be looked at
to see if the act was really done practically, which would be for the
jury; and I cannot say that the magistrate was not justified in com-
mitting the prisoner for trial.”’
And Mr. Justice Crompton observed, ‘“ Upon the latter point I
quite concur with my Lord, because it is not for us to weigh the
effect of the evidence which is for the jury; and all we can con-
sider is whether there was enough to justify a committal for trial,
and I agree with my Lord that we cannot say there was not.”
It is unnecessary to multiply authorities on a point so clearly
defined by the Treaty ; but the following observations of Attorney-
General Cushing, in advising the Government of the United States
in a case where the prisoner arrested for extradition on a charge of
murder, desired to prove insanity before the committing magistrate,
are so pertinent that they are quoted: ‘ The evidence upon the
exhibition of which this (?.e., delivery up to justice) is to be done
is such as, according to the laws of the place where the fugitive, or
person charged shall he found, would justify his apprehension and
commitment for trial if the crime or offence had been there com-
mitted.” “‘ Had the Treaty conferred upon the magistrate—if it
could have been made competent to such an object—the power of
trying the person charged for an offence committed within a
foreign jurisdiction, and of punishing in case of ascertained guilt,
the inquiry might have presented itself in a different aspect. But
the stipulations under examination aim at no such end, but are
——
a
a
ES +
346
confined to the ascertainment of facts which can weigh nothing in
any consequent and purely judicial investigation of the charge.”
It is contended, therefore, that both reason and authority sup-
port the conclusion that under the terms of the treaty, and the
statutes relating thereto, on a preliminary judicial enquiry, we have
no right to pronounce upon the state of facts which might or might
not have justified the act with which the prisoners stand charged,
but that our plain duty is to say that these acts must be tried
before a jury. On the subsidiary question, whether us neutrals we
can constitute ourselves judges of the character of the act com-
plained of, it is submitted that when two belligerent powers have a
dispute as to whether a particular act is one of robbery or one of
war, it is not the duty of a neutral power (when there is no doubt
but that for the state of belligerency which exists, the act would
cleariy be robbery) to decide so grave and serious a question on a
mere ex parte enquiry. If one belligerent treats prisoners as felons,
when they were but performing their duty as soldiers, the other
belligerent, to whom the prisoners profess allegiance, can obtain
redress by reprisals, retaliation, or otherwise.
T have now endeavored to lay before the Court in as succinct a
manner as I was able to do, the view which I, humbly representing
the first Law officer of the Crown, have felt constrained to take of
this transaction, and of the attempt that has been made to justify
it. Ihave endeavoured to perform a legal function, in a legal
manner, and I have purposely avoided all “allusion to many topics,
which in so serious a case might possibly have justified allusion on
my part. ‘There is one aspect of the case, however, resting on the
broadest grounds of international comity, and of the duty arising
out of the relationship which should properly subsist between two
countries situated as Canada and the United States. The circum-
stances of the two countrics,—their geographical position,—the
difficulty of exercising effectually a continuous vigilance over the acts
of those who under pretence of seeking mere security, have only
resorted to Canada that they may mature with impunity hostile
schemes against an adjoining power with whom we are on terms
of peace and amity, have all to be considered. Our conduct ought
to be what we would expect and exact from others in the like case,
id such as the law of civilized nations, in the exceptional position
we occupy, demands. The doctrine of affording an asylum to poli-
tical refugees is admitted to the fullest extent; the laws of hospi-
tality, the dictates of humanity and the general feelings of mankind
support it. But it is an asylum in the proper acceptation of the
word, which is sought ; and are the prisoners political refugees or
exiles rightly so termed? Our duty is not confined to affording a
sanctuary within our territory under all circumstances for those
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547
who call themselves political offenders ; the further duty of seeing
that the privilege of asylum is not abused to the injury ofa friendly
power is equally imperative. We are bound to consider whether
the neutral ground is only resorted to because it offers a safe and
convenient resting place im the intervals of warfare, and as the
reaciest means of inflicting with impunity injury in any other shape
on the friendly power ; whether in fact the acts of public hostility
or private wrong would ever have been undertaken and committed
but for the proximity of the supposed asylum—whether they are
not in reality attributable to and prompted solely by the facilities
which our territories afford both for attack and escape. We must
enytre whether the animus in which it is sought is to obtain peace
and permanent security, and whether the party fleeing comes in
the light of an exile. If we are satisfied of the contrary, then we
must say that this neutral ground cannot under the name of an
asylum be used as a vantage ground, and that the party fleeing
from territory hostile to him, has by his own acts forfeited the
security which nations usually accord. He has no right to abuse
the only privilege which our soil confers—that of being safe so
long as he is passive—nor has he the right, because he believes he
can escape hither, to plan and perform acts which would never
have been dreamt of, but that an asylum was near, and that he
believed he could reach that asylum in safety. If within that
supposed asylum he recuperates and prepares for fresh acts of
ageression, and is not content with finding security against oppres-
sion and wrong himself, but resorts to it only that he may mature,
and sally forth to execute, schemes of offence on others ; then he
has not the qualities of a refuzee , hor is his object an asylum. A
refugee is one who, after being overcome as a combatant, flies from
his enemy to the nearest place of security—not one who merely,
because there is a neutral ground at hand, undertakes to inflict an
injury because of the supposed immunity it affords. An asylum
implies security from mere pursuit after an act which the law of
nations will recognise—not the means of annoying those pursuers with
impunity, or converting the sanctuary into a means of offence. The
Treaty was certainly never intended to protect those who committed
predatory acts under the name of war across an imaginary line.
Sir Cornwall Lewis put the difficulties which must spring from the
immunity extended to such acts thus :—‘‘ It must not however be
supposed that the rigid territorial principle of criminal jurisdiction
though founded on sound principles, is exempt from its compensating
disadvantaves, or that the civilized world can be practically cut
into separate sovereignties, cach acting without reference to the
criminal law of its neighbor. Where the territories of neighbor-
ing nations are conterminous—where they are separated by a merely
Pe oe a gig nes 82
348
arbitrary line, without any natural demarcation, such as a chain of
high mountains or a broad and unfordable river, and where therefore
a facility of mutual passage across the frontier limit exists, there
the entire independence of the two territories for the purposes of
criminal jurisdiction may lead to a permanent state of insecurity
both for person and property.”
My learned friend who spoke last on behalf of the prisoners,
has referred to a portion of the speech of Daniel Webster, made in
the Senate of the United State, in defence of the ‘Treaty of
Washington, for the purpose of showing the exemption of the .
persons of soldiers from individual responsibility for what they do
while acting under lawful orders. Nothing that was said by Mr.
Webster on that occasion—nothing that has ever been said by any
authority on that subject has the slightest application to the present
case. ‘The whole weight of the authorities cited in support of the
principle contented for “by Mr. Webster, applies to lawful belligerent
operations, as recognised and practised by civilized nations ; ‘and it
is merely begging the question, to assume that this transaction is
of a lawful character, for the purpc vw of applying the principles
laid down in those authorities. Nor is it correct to say that Mr.
Webster ever once in the course of that celebrated speech, or on
any other occasion extended the principle in question to exemption
from trial. On the contrary we find his express words to be at
page 125— That McLeod might insist on the same facts, and
insist on the same defence or exemption at his trial.’ ‘This is in
the answer of the American Secretary of State to a letter from Mr.
Fox, the British Minister at Washington; and further on, at page
131, we find Mr. Webster using these very words as if to set the
matter at rest:— Mr. Fox was told that these proceedings must
go on, until thev were judicially terminated,” and in point of fact
we know that they did go on; that McLeod was brought to trial,
and acquitted on the merits. But since the writings or the sayings
of Mr. Webster are referred to, why did my learned friend’s
examination of the speech come to such a sudden termination ?
Why did he not proceed to that farther portion of the renowned
statesman’s explanations on the subject of this treaty, about which
there can be no doubt; that portion of his remarks where Mr.
Webster himself tells us not only the object, but the effect of the
stipulation of this Treaty, for the mutual surrender of fugitives from
justice. Here are the words, at page 140: “I undertake
to say that the article for extradition of offenders contained
in the Treaty of 1842, if there was nothing else in the
Treaty of any importance, has of itself been of more value to this
country, and is of more value to the progress of civilization, the
cause of humanity and the good understanding between nations,
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349
than can be readily computed. What were the state and condition
of this country, Sir, on the borders and frontiers at the time of this
Treaty? Why, it was the time when the ¢ Patriot Societies,’ or
‘ Hunters’ Lodges’ were in full operation, when companies were
formed and officers appointed by secret associations to carry on war
in Canada ; and, as I have said already, the disturbances were so
frequent and so threatening, that the United States Government
despatched General Scott to the frontier to make a draft on New
York for militia, in order to preserve the peace of the border. And
now, Sir, what was it that repressed these disorders, and restored
the peace of the border ? Nothing but this agreement between
the two governments, that of these ‘ Patriots’ and ¢ Barnburners’
went from one side to the other to destroy their neighbor’s property,
trying all the time to bring on a war, (for that was their object),
they should be delivered up to be punished. As soon as that
provision was agreed to, the disturbances ceased on the one side,
and on the other they were heard of no more. In the formation
of this clause of the Treaty, I had the advantage of consultation
with a venerable friend near me, one of the members of Michigan.
He pressed me not to forego the opportunity of introducing some
such provision; he examined it, and [ will ask him if he knows
any other cause for the instantaneous suppression of these border
difficulties than this Treaty provision.”
Will any one undertake to elevate this St. Albans outrage
above the character of the misdeeds here described by Mr. Webster
himsclf as within the express provision of the Treaty ? Will any
one contend that it partakes of the character of war half as mnch
as many of those expeditions ? Having now laid before the Court
the view of this case which my duty compelled me to take, I shall
abstain from any further observation not absolutely called for by
the circumstances. I feel that any sane man—to say nothing of a
grave magistrate, must be expected to caricature his impressions,
before he can pronounce the act of the prisoners to be apparently
an act of war in itself. I feel that whatever it could, under
any circumstances have been contended to be, the peculiarity of its
origin on, and emanation from, neutral territory, completely deprived
it of all possible lawful character ; and I feel that we shall be trans-
cending our proper functions, and assuming a responsibility and a
jurisdiction we do not possess, if we undertake to say that we will
appreciate the guilt or innocence of the parties concerned, and de-
cide that with all these questions untried and untriable before us,
we will not execute this Treaty, and send the prisoners for trial
where alone it can be had. It has been insinuated more than cnce
in the course of this case, that this country is acting under fear and
pressure in this matter. Such topics are not usual in English Courts
350
of Justice, and are far too rendolent of the hustings, and of politi-
cians of the second table, to be welcome in these halls. If sucha
thing were possible indeed, as that a judge of this country should
forget his duty to the Laws, from fear of any foreign power, it
would be difficult to imagine a greater baseness, unless it be the
baseness that dares not express ; but leaves it to be darkly under-
stood, that any man who fearlessly does his duty in such an emer-
gency will be liable to the odious and calumnious imputation of
having been swayed by unworthy motives. Allusion has been made
by my learned friend, Mr. Laflamme, to what he is pleased to call,
two important circumstances that have occurred during your Honor’s
illness. The one is the execution of Beall, and the other a letter of
Lord Russell to Mr. Adams. ‘The case of Beall was referred to, to
show some fancied inconsistency between the judgment of the Upper
Canada Judges and the act of the American Government. No such
inconsistency exists. Beall was executed as a spy by martial law,
and never was a refugee in Canada, or demanded as such by the
American Government. Burley was surrendered and properly tried
for the offence, or at all events is to be tried for it, for which he
was so surrendered. The Judges of Upper Canada never decided
that Beall, whose case was never before them, did not commit rob-
bery ; they only held that Burley did. The despatch of Lord Rus-
sell seems to be taken as a judicial decision, that the act committed
on the Roarake was an act of lawful war. It is no such thing. The
American Government could not apply to the Colonial authorities
at Bermuda for information ; they were obliged to employ the ordi-
nary official channel, and through their minister in London apply to
the Foreign Secretary for information on a point of fact, not for a
judgment on a point of law. They did so, and received the proper
answer that the reasons, which had been duly transmitted no doubt
by the Colonial Governor, whether good reasons or bad reasons,
were what they were. Lord Russell gave no opinion on the valid-
ity of those reasons in ‘hat particular case. He was not asked to
do so; but merely gave the information required ; and even if His’
Lordship had done so, he certainly did not decide that a commission
of the nature of the one in the present case ; still less the authority
given in neutral territory, to proceed from it to perform an act of
robbery was a lawful authority to do the deed the prisoners have
done. I have endeavoured, as completely as time will permit, and
under a feeling of the great disadvantage, in speaking atter the
exhaustive and able efforts that have preceded me, to place my
view of this case succinctly before your Honor. ‘I'o your judicial
authority I now submit it, quite satisfied that far above the tempest
of political passion, and still further removed from the baleful
reflection of the strife raging between our neighbors, you will do
impartial justice between the parties.
is
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March 23rd, 1865.
Mr. Carter, Q. C., addressed the Court on behalf of the Crown.
He said: ‘ May it please your Honor—Considering the length of
time already devoted to the arguinent of this case—the number
of Counsel who have preceded me in the discussion of it—and more
particularly the circumstance of your Honor’s recent illness, ren-
dering more arduous the performance of your duties, it is with great
reluctance I rise to address you. I have therefore to solicit your
Honor’s indulgence for a short time, promising, ds I do, to limit
myself entirely to the legal aspect of the case. I have no desire to
make what is called a ‘speech, in the sense in which that term
is applied to the efforts of those who aspire to be cloquent—to
appeal to the sympathies, or to the prejudices of men. Such efforts
might be excused, when the counsel is engaved in defense of his
client before a jury, but can have no weivht whatever with your
Honor, in this Court. The case before you is a demand for extra-
dition, and I feel it my duty to use my best efforts to convince
your Ionor, that this demand is just and reasonable ; that the law
you are called upon to administer, imposes upon you the oblivation
of committing the prisoners for extradition, and that this demand
cannot be refused without violating the law of the land, and
the treaty obligations of our Sovereign with a foreign government.
In all civilized communities, the necessity for the exercise of a cor-
rective power, to accomplish ‘the suppression of crimes, and the
punishment of offenders has been universally admitted ;— without
which every thing would be anarchy and confusion. The exercise
of this power is one of sovereignty ; the object to be attained, is the
peace and welfare of the community at large. In securing this,
every individual member of socicty 1s deeply. interested; the safet
of his person and property, being the equivalent accorded to him,
for the sacrifices he makes in contributing his share towards the
maintenance of the social compact. In criminal matters, the jurisdic-
tion is considered local, the place where the offence was committed
being, as a general rule admitting of but few exceptions, the test
of jurisdiction. Hence it is that as between nations, it was at one
time considered the duty of a nation in whose territory the crim-
inal may have taken refuge, to surrender him to the authorities of
the other, whose laws he may have violated. ‘This point gave rise
to conflicting opinions amongst jurists; the majority being of
opinion that ” whatever might “be ‘its expediency, the extradition
of criminals could not be claimed as a matter of right, in the
absence of treaty stipulations. In this case, that question does not
arise, as the claim now urged is based upon an existing treaty
between Great Britain and ie United States of America. I now
come to the consideration of this claim for extradition, and I am
Ae ED tO ae es rows
eR ie aaa
2 me
EME aT Ha ac
352
reminded by that circumstance of what took place at the close
of this argument yesterday. I was asked by several persons, how
I could expect to find a single argument to offer, which had not
been already advanced and fully discussed by the three learned
gentlemen who preceded me. I feel the justice of this remark, for
certainly every possible effort has been made to exhaust the subject.
Without wishing, however, to be considered egotistical, I may
be permitted to say, that I have still some important points hitherto
unnoticed, to urge upon your Honor’s consideration. They are
contained in this printed document, being the propositions and
authorities I have prepared in a concise form.
Here Mr. Carter handed to the Judge the propositions and
quotations from authorities, and proceeded to say that he had
stated to his Honor that the Treaty between Great Britain and the
United States, might be considered as the very basis of this appli-
cation. But his learned friend, Mr. Kerr, had considered it
necessary to embody in his fifth proposition, the pretension that the
United States no longer existed, because five or six States had
been admitted into, and nine or ten States had seceded from the
Union since the ‘Treaty with Great Britain ; and that its sovereignty
had by the existence of the civil war been dissolved. Mr. Carter
denied the proposition, which was altogether devoid of any founda-
tion. ‘Ihe accession of territory, or the existence of civil war
might affect the internal organization and government of a State,
but in so far as Foreign States were concerned, did not
alter its personalty, or its external relations towards them. In
support of this doctrine, the learned Counsel quoted from
Lawrence’s Wheaton, page 89—‘ A State, as to the individual
members of which it is composed, is a fluctuating body ; but in re-
spect to the society, it is one and the same body, of which the exist-
ence is perpetually kept up by a constant succession of new mem-
bers. ‘This existence continues until it is interrupted vy some
change affecting the being of the State. If this change be an
internal revolution, merely altering the municipal constitution and
form of government, the State remains the same ; it neither loses
any of its rights nor is discharged from any of its obligations.” —
Also page 86. 1 Phillimore, p. 189—* But a State may undergo
most important and extensive changes without losing its personalty.”’
At p. 140—* This vital principle of International law is a neces-
sary and principal consequence flowing from the doctrine of the
moral personalty and actual intercommunion of states.” Halleck,
p. 72 and 73—* A State, as to the individual members of which
it is composed, is a fluctuating body, being kept up by a constant
succession of new members ; so, also, its form of government and
municipal constitution may be subject to frequent alterations and
{PR PP trie yo
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constant
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353
changes in the constituent
Soy irae pe parts of the body politic, and i i
age sanader mahal do not affect the cha hes of the states
‘ : t ations to other communities,—that is, i sabi,
tional law. es,—that is, in interna-
identity is destroye et
pa plea eae ha a interruption in its existence as a separate
Arie ae y; and it neither looses any of its rights o
arged trom any or its obligations, by a Be et
ee or internal revolution.” — 1 Kehoe. Gon ges eer os
tyne ea. Gan iyi ‘i +5 Pp. so
Souci ae ons pen he would lay beiore his ee
for the ee ond Great Britain and the United States
affected by the aire ar eS HOY BUY ay impaired or
latter, or by any praca ’ Reon Din the territory of the
Sr ne would cite from 1st Kent's Com, mp. 28. A eyieh
“a — : +5 DP» «0—
wel he uuderstio, a period when altering in conti
is a clear spaition of tl oe in states are familiar, that it
saectal sitlol he law of nations, that treaties a
ed, nor positive obligations of any kind with otl oe
EN eee weakened by any such ae Ae
eee a aie he rights, nor is discharged from aie,
The body eg san - the form of its civil government.—
organ of Soraaiinieadal * ee ae eo aye different
1st Phillimore, p. 143 : 3 rine was to be fo i
ear an came now to the most Tt ae
ewattie ae He es his third preposition, which was to this
neutrality of the ike Fama of May, 1861, declaring the
Cae ation during the hostilities commenced betwe
i nment of the United States and certain State ae
emselves ee the Confederate States of Aaneren? 1 i i sty ns
. septs right, the effect of which at most is . a ak
ie i - ee to belligerent rights or privileges of Sane hee
ese rights must not be confounded with the rigt sae
ie ee from the doctrine of recoynition aoe a auee
ecogniz ; “. : seater as
fe - ‘ Seer er aie - se bea pendent sovereignty
chee ee ) consider the ancient sti
bf sana es Somane aan ee ae epee Vy
aul , , 1as been invariably adopted by Engli rig ens
ican courts. l y English and Ameri-
a eae authorities were cited in support of this proposi
_— r ae NY eye =
eal rier : Pe peu sone oo recognition of the snide paideties
when that inde yendence is es | raked an by on forelgee pier
Ben st oolioy Pa ue is established in fact, is therefore a ques-
for itself; but this eee ae ah uipe wee noie
a ; st be a
legislative or executive power of the oe tance tn
A y any subor-
ay ‘ .
ie State remains ‘ iti
the same political body, until its’
854
dinate authority or the private judgment of individual subjects.
And until the independence of tl. rew state is recognized by the
government of the country of which it was before a part, or by the
foreign state where its sovercignty is drawn in question, courts of
justice and private individuals are bound to consider the ancient
state of things remaining unaltered.”’ L’s Wheaton, p. 47—
(Same doctrine.) 1 Kent’s Com. ,p. 27 (note) —* It belongs to
legislative or executive power (according to the character of the
government) to recognize the independence of a people in revolt
from their foreign sovereign ; aad until such acknowledgment be
made, courts of justice are bound to consider the ancient state of
things as remaining unaltered.”’—City of Berne y. Bank of Eng-
land, 9 Vessey, B47 ; the Manillas, 1 Ed. Adm. R. 1; Yrisarri,
v. Clements, 3 Binghan, 432 ; 'T' hompson v. Powles, 2 Simons, 194;
Taylor v. Barclay, ib. 218; Rose v. Himely, 4 Cranch, 241;
Hoyt v. Gelston, 13 Johnston, 139, 141; United States v. Pal-
mer, 8 Wheaton, 610. 2 Phillimore, p. 37:—* Itis a firmly
established doctrine of British and North American, and indeed of
all jurisprudence, that it belongs exclusively to governments to
recogize new states ; and that until such recounition, either hy ths
yovernment of the country in whose tribunals a suit is brought, or
by the government to which the new state belonged, ‘ courts of j Jus-
tice are bound to consider the ancient state of things as remaining
unaltered.’ ”’
The citation of these authorities must be sufficient to establish
conclusively the proposition he had submitted. But he would
remind his Honor that Mr. Laflamme had endeavored to apply
precisely the same principle to another proposition. He had also
endeavored to draw this deduction, that the prisoners would be
treated as robbers ; but his Honor had not to deal with the conse-
quences that might ensue in any country, but to deal with the case as
it presented itself before him.’ The learned Counsel now came to
his fourth proposition, which was that, applying these uncontroverted
rules of jurisprudence to the case, the pretension of the prisoners’
counsel, that Bennett H. Young was a duly commissioned officer in
the service of the Confederate States, and hence irresponsible for
the acts perpetrated at St. Albans, and that this Court was bound
to take notice of that commission as proved, was an untenable one,
and at variance with the jurisprudence of English and American
courts. ‘The Court was bound to disregard this commission and
the evidence relating thereto, as shown by the authorities he
wouldcite. ‘To adopt the pretension of the counsel for the prison-
ers, would be the assumption by a Judge of legislative or executive
powers appertaining solely to the Executive Government, and
virtually to recognize (which England hitherto had not done) the
Ce —_——_—
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SHEE MOSEAW PONTE
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4
855
existence of the Confederate States as an independent sovereignty.
This doctrine was laid down, not only by American authors and
jurists, but by several decisions had in England. In I’s Wheaton,
p- +5 (note) it was stated :—* But it is to be remembered that in
the question of belligerent rights, asofa more formal acknowledgment
of independence, the decision is with the Government, and not
with the Courts; and it was accordingly held by the ee
Court of the United States in 18: 21, in acase as to the validity of
condemnation by a Court of Adinire alty at Galveston, that, as ae
United States had not hitherto acknowledged the existence of a
Mexican Republic or State at war with Spain, so that Court could
not consider legal any acts done under the authority or flag and
commission of such Republic or State.” He also cited Wheaton’s
Reports, vol. 6, page 18 5 and 2nd Philimore, p. 48.—Citing
10 Vesey, 85, 11 Vesey, 238. Dolder vs. the Bank of Eng-
land. ‘The Court refused to order dividends, received before the
bill fyled, of stock purchased by the old Government of Switzer-
land, to be paid into Court by the trustees, on the application of
the present Government, without having the Attorney General a
party. In Taylor vs. Barclay, 2 Simon’s Rep. 215, it also ap-
peared that, to prevent a demurrer to a bill, it was falsely alleged
in it that a revolted colony of Spain had been recognized by Great
Britain as an independent State; the Court held itself bound to
know, judicially, that the allegation is false, and not to give it the
intended effect. A reference had been made to the case of the
Roanoke, which certainly might appear at first blush to be the
strongest case adverted to by the Cinssl on the other side. It
was a closer analogy to this case than others were, because what
had been done there had been done sinee the commencement
of the war. But he thought that there was one observation
which was conclusive. ‘That case was not a judicial decision.
What was done there was this: a commission had been produced and
proved, and the Attorney General said that there the case must end.
That was an exercise of Executive authority, and the principles
there laid down strengthened his position.
His fifth proposition was as follows :—‘‘ That viewing the circum-
stances under which this case presents itself, the obligation of the Im-
perial Government to carry out its ‘Treaty obligations with the United
States of America—its declared neutrality in the prevailing contest,
which is a further pledge of its sincerity to consider these obligations
intact—and the non-recognition of the Confederate States as an
independent sovereignty, it becomes wholly unnecessary to discuss
Mr. Kerr’s propositions, that the violation of:instructions by a com-
missioned officer renders him amenable to his own Government
only, and that the other belligerent power, or a neutral nation, can-
356
not constitute themselves the judges of such violation. It suffices
to show the fallacy in this case of sul; “onsions, to state that
these considerations could only arise in” °* is called a perfect war
between two distinct nations, having as utc national character
and equal rights of sovereignty, guead the neutral nation. He
thought the mere enunciation of that proposition was sufficient
without entering into a discussion of it. What was the use of the
learned Counsel on the other side advancing principles which
could have no bearing on the case. Kven taking it for granted
that the Judges in Upper Canada gave as a reason for their decision
that there had been a violation or deviation of authority, it seemed to
him that the Court in that case was bound to do just what he now
called upon his Honor to do. Was this not a treaty with the United
States, as binding upon these prisoners as any one else? ‘The
decision in the Burley case was right; the Judges were bound
to consider the ancient state of things as unaltered. He now came
to the second branch of his case,—Bennett IL. Young’s commission
considered from another point of view. ‘The alleged facts were
these: The commission bore date 10th June, 1864, purported to
be signed by James A. Seddon, Secretary of War. Letters of
instructions, bearing the same date and signature, were produced,
directing him to organize “a company not to exceed twenty in
number, from those who, belonging to the service, are at the time
beyond the Confederate States.” Also “ to proceed without delay
to the British Provinces,” where he was to report to Messrs.
Thompson and Clay. A letter of C. C. Clay's, dated in October,
1864, addressed to Lieutenant Young, approved of his suggestion
to make a raid upon St. Albans. It was proved that Mr. Clay
had been for some time previous a resident at St. Catherines, in
Canada. ‘There was evidence to show that the prisoners resided
in Canada prior to the 19th October, 1864, and that Young, in the
fall of 1863, attended the University at Toronto. Assuming, for
the purposes of argument, all these matters to be conclusively
proved, their legal effect could be determined only by a careful
consideration of the law of domicil by a foreigner, a subject of one
of the hclligerent powers, in the territory of a neutral nation ; and the
laws of neutrality as affecting acts of hostility committed by him.
The following propositions and authorities were submitted as con-
clusive :—6th. That prior to the commission of the offence charged
against Bennett H. Young and his associates, the evidence estab-
lished that they were domiciled in Canada, owing temporary and
local allegiance to the British Crown, subject to its laws, and bound
equally with all Her Majesty’s subjects to a strict observance of
the laws of neutrality. There was no ground whatever for the
analogy attempted to be made by the prisoner’s counsel, between
coi hala
ces
hat
war
ster
He
ient
the
hich
nted
ision
ed to
now
nited
'The
yound
“ame
ission
were
tec to
ers of
luced,
nity in
e time
delay
lessrs.
atober,
restion
*, Clay
nes, i
-esided
in the
ng, for
isively
areful
of one
hnd the
y him.
AS con-
harged
estab-
ry ¢ and
bound
AnCce of
or the
etween
i
4
i
i:
‘
‘
357
this case and the transient passage of troops through a neutral
territory. The residence of Bennett If. Young and his associates
in Canada, although temporary, stamped them with the national
character of their new domicil. The presumption of law with
respect to such residence, was that they were there antimo manent,
and that they had to be dor lt with in the same manner. and to be
judged by the same rules, as any natural-born subject, charged
with the same offence, would be. He proposed to be much briefer
in the discussion of this proposition than he would otherwise have
been, from the circumstance that it had been dwelt on by his
learned friends who preceded him. But there was one point which
he thought had not been touched upon, and to which he wished
to direct the attention of the Court—that was the law of domicil
and the consequences resulting from it. Vattel, b. 1, ch. 19,
sec. 213, said :—** The inhabitants, as distinguished from citizens,
are foreigners, Who are permitted to settle and stay in the
country. Bound to the society by their residence, they are
subject to the laws of the state while the ‘y reside in it; and they
are obliged to defend it, because it grants them protection, thonszh
they do not participate in all the rights of citizens.” Also B. 2,
ch. 8, sec. 101. L’s Wheaton, p. 567—* Having once acquired
a national character, by residence in a foreign country, he ought
to be bound by all the consequences of it, until he has thrown it off,
either by an actual return to his native country, or to that where
he was naturalized, or by commencing his removal, Jona fide, and
without an intention of returning.” TIalleck, p- T01—* Tt follows
then, that when a person who has attained his majority, removes to
another place, and settles himself there, he is stamped with the
national character of his new domicil ; and this is so, notwithstand-
ing he may entertain a floating intention of returning to his original,
residence or citizenship at some future period.’ 1 Kent’s Com.,
. 86—* The presumption arismg from actual residence in any
place i is, that the party is there animo manendi, and it is upon him
to remove the presumption, if it should be venuistle for his safety.”
He also cited 1 Phillimore p. 262, 278; 2 ib., p. 24. The learned
Counsel next urged as his seventh proposition, that the statement
made by Bennett H. Young, in his voluntary examination, as to his
place of birth and his owing no allegiance to the Federal Govern-
ment, was no defence to the ch: arge preferred against him. It was
the fact of his being domiciled in Canada, previous to, and at the
time of, the commission of the offence charged against him, which
became the test of his national character, the advantaves and disad-
vantages of which were inseparable from it ;
and in support of this
he cited 1 Kent’s
Com, p. 85—** The same principle, that, for all
commercial purposes, the domicil of the party, without reference to
or das it
A? CAS ey Sue mb caeman
— " ? r
858
the place of birth, becomes the test of national character, has been
repeatedly and explicitly admitted in the Courts of the United
States. If he resides in a belligerent country, his property is
liable to capture as encmy ’s property and if he resides in a neutral
country, he enjoys all the privileges, and is subject to all the incon-
veniences of neutral trade. Ile takes the advantages and disad-
vantages, whatever they may be, of the country of his residence.
The doctrine is founded on the principles of national law, and
accords with the reason and practice of all civilized nations.” In
the case of the Danous (cited in 4 Rob, Rep. 255, note) the rule
was laid down by the English House of Lords, in 1802, in unre-
stricted terms; and a British subject resident in Portugal, was
alowed the benefit of the Portuguese character so far as to render
his trade with Holland, then at war with England, not impeachable
as an illegal trade. The same rule was afterwards applied (in
Bell v. Reid, 1 Maule and Selw, 726), to a natural born British
subject domiciled in the United States ; and it was held, that he
might lawfully trade to a country at war with England, but at
peace with the United States.” The effect of these authorities
was to show that all incursions upon a country where civil war
prevail were unlawful, and were to be considered piratical incur-
sions. Bennett H. Young’s commission then was of no avail what-
ever, and he was amenable for this offence the same as if it was
committed by one of our subjects. Why should his Honor be
called upon to apply a different rule in this case to a foreigner from
that which would apply to a British born subject? Both had to be
dealt with in the same way. ‘That doctrine was founded not only
on law but also on equity. It was no answer in the prisoner’s
mouth to say, Oh, I left Canada and went to the United States to
commit this act of depredation; but I am a Confederate soldier,
and acted according to instructions; and what would be con-
sidered a crime in a British subject, is justifiable in my case.
Such a position was altogether untenable. It was contended
that Bennett H. Young was a duly commissioned officer in the
service of the Confederate States, and that the policy of Great
Britain had also been to afford protection to pclitical refugees.
This pretension, however, had no application to the case, as the
evidence established that he availed himself of the asylum afforded
to him by his residence in a neutral territory, to commit depreda-
tions in a neighboring State on terms of amity with England.
These acts are to be judged by the municipal criminal code, “being
also prohibited by the law of nations. In support of his argument
the learned counsel cited: 1 Phillimore, p. 190— Upon the
same principle, though a nation has a right to afford refuge to the
expelled governors, or even the leaders of rebellion flying from
een
ited
ty 18
atral
\con-
isad-
nce.
and
In
rule
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dd Gin
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orities
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tended
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Great
ugees.
as the
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k “being
rument
mn the
to the
from
359
another country, she is bound to take all possible care that no
hostile expedition is concerted in her territorics, and to give all
reasonable guarantees on this subject in answer to the remon-
strances of the nation from which the exiled has eseaped.”’ At p.
191—* For it never can be maintained that however much a state
may suffer from piratical incursions, which the feebleness of the
executive Government of the country whence they came renders
it incapable of preventing or punishing, that, until such government
shall voluntarily acknowledge the fact, the injured state has no
right to give itself that security, which its neighbor’s covernment
admits that it ought to enjoy, but which that government is unable
to guarantee.” At p. 304 was to be found the following portion
of a speech delivered by Lord Lyndhurst :—* Foreigners residing
in this country, as long as they reside here under the protection of
this country, are considered in the light of British subjects, or
rather subjects of Her Majesty, and are punishable by the criminal
law precisely in the same manner, to the same extent, and under
the same conditions, as natural born subject. of Her Majesty.”
He came now to his ninth proposition, namely, that assuming that
Bennett H. Young was a duly commissioned officer in the service
of the Confederate States—that he came to Canada for the purpose
of carrying on hostilities according to such instructions as he might
receive, and that his acts at St. Albans were performed in obedience
to orders conveyed by the Hon. C. C. Clay’s letter of 6th October,
1864; still the pretens‘on of his Counsel that those acts were to be
regarded as acts of warfare, legitimately performed in obedience
to orders he was bound to obey, and such as to entitle him to
immunity as a belligerent soldier, was altogether at variance with
the rules of international law. These rules furnished a complete
answer to this pretension. First: that a belligerent state possessing
rights of sovereignty (which the Confederate States did not) could
not by commission or otherwise authorize acts, the performance of
which involve a violation of neutrality and the commission of a
crime. Secondly: that Young was not bound to obey such order ; ;
the order itself made in Canada | being a violation of law, inte rna-
tional and municipal, and affording no justification. Thirdly :
belligerents who did not respect the neutr ality of a State, commit
a violation of international law. He quoted Halleck, p. 496—
‘¢ No authority can require of a subordinate a treacherous or crim-
inal act in any case, nor can the subordinate be justified in its
performance by any orders of his superior.” 1 Kent's Com., p.
129—* There is no exception to the rule that every voluntary
entrance into neutral territory, with hostile purposes, is absolutely
unlawful.’ At page 127—‘* So in the case of ‘'The Anna,’ the
sanctity of neutral territory was fully asserted and vindicated
360
and restoration made of property captured by a British cruiser
near the mouth of the Mississippi, and within the jurisdiction
of the United States. It is a violation of neutral territory
for a belligerent ship to take her station within it, in order
to carry on hostile expeditions from thence, or to send her hoats to
capture vessels beyond it. No use of neutral territory, for the
purposes of war, can be permitted. This is the doctrine of the
government of the United States.” It was declared judicially in
England, in the case of “ The Twee Gebroeders,” (6 Rob. Rep.
873) ; : also 3 Phillimore, pp. 584 and 357; Halleck, pp. 617 and
523 ; Vattel, b. 38, ¢. 7, sec. 183. He would also quote from pp.
16 and 17 of Leiber, on guerilla warfare. Mr. Leiber, as a matter
of course, did not pretend that uniform was essentially necessary to
constitute a man a soldier. On the contrary, he admitted that a
uniform could make very little difference when engaged in lawful
acts of war, such as a siege, &c. ‘That was one case; but there
was another which he mentioned which should not be lost sight of:
He said:—It makes a great difference, however, whether the
absence of the uniform was used for the purpose of concealment or
disguise in order to get by stealth within the lines of the invader
for the destruction of life or property, or for pillage, and whether
the parties have no organization at all, and are so small that they
cannot act otherwise than by stealth. Nor can it be iainganiel
in good faith, or with any respect for sound sense and judgment,
that the individual—an armed prowler—(now frequently called a
bushwhacker) shall be entitled to the protection of the law of war,
simply because he says that he has taken up his gun in defence of
his country, or because his government or his chief has issued a
proclamation by which he calls upon the people to invest a town
and commit misdeeds which other civilized nations will consider
murders.” Now what stronger language couldbe cited which
had a more direct application to this case? What did these unfor-
tunate young men do? Did tuey not disguise themselves and
enter the town by stealth, that being the only way they could
act. There was no authority— even a recognised soy ercign
could not give to Mr. Young orders to do that which was a violation
of international law or that which was a criminal act. Therefore
the prisoners could not be protected because they obeyed. He
also cited another case in which it was laid down that “ it is not
presumed their sovereign has ordered them to commit a crime ;
and even supposing that they had received such an order, they
ought not to have obeyed it—their sovereign not hi aving a right
to command what was contrary to the laws of nature.” What
could be clearer than this? And yet it was pretended that Jeff.
Davis had a right to order these acts, no matter what they were,
"SRS ened lait le APES PEIN
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so long as the end In view could be accomplished. That argument
might do in the prisoners’ own country, but not before this Court.
After dwelling upon this point, Mr. Carter proceeded to the ¢ n-
sideration of his tenth proposition, that was, the charge against the
prisoners. ‘The complaint charged the prisoners with the crime of
robbery, in having at St. Albans, on the 19th October, 1864, with
force and violence, taken from the person of one Breck a sum of
$300. Breck was a peaceful citizen, unarmed, and not engaged
in hostilities ; but pursuing his ordinary business avocations. He
went to the Bank with this money to pay a note, and there was
robbed. The prisoners’ counsel had found it necessary to invoke
the ancient and extreme rule, that “right of spoil or plunder
extends in general to all things ‘belonging to the enemy.” But in
this case, the propositions and authorities already viven, established
that the acts of the prisoners at St. Albans could not be regarded
as acts of warfare. It was umnccessary to discuss the question, to
what extent depredation and plunder might be considered justifi-
able, as between the belligerents. It was, however, certain that
the principle invoked by the prisoners’ counsel was at. vari-
ance with the rules of warfare, now recognised and acted
upon by nations, as shown by the following authorities ; to Vattel,
b. 3, ch. 9, sec. 173. 3 Phillimore, pp. 101,38. 1 Kent's Com.,
pp- “99, 100, 1, 2, 3, and 4. Halleck, DP: 382, 8, 427, 456, 402.
L’s. W Fheaton, pp. 986, 8; 596, 600, 1; 626. Lieber’s Instruec-
tions, Rules, 16, 22, 25, 83, and 84. Ib., on Gueriltia Parties, pp.
i6 and 17. Lieber’s Letter, 5th February, 1865, Trial of Beall,
pp. 84 and 85. In conclusion, Mr. Carter said :—I would respect-
fully submit that your Honor’s attention must be directed to the
consideration of the following points which are respectfully submitted
as conclusive. 1st—That the charge has been fully proved against
the prisoners. 2nd—That although their leader, Young, claims to
be an officer in the Confederate States, his acts were not authorized
by any authority this Court can recognize. 3rd—That the com-
mission he produces must be disregarded, the Court beg bound to
know judicially that the Confeder ate States have not been recogni-
zed by Great Britain as an Independent Sovereignty. 4th—'That
the incursion made from our territory into the State of Vermont,
is to be regarded not only as a crime punishable by our municipal
law, but is declared an act unlawful and piratical by international
law, and hence not protected by it, as an act of lawful warfare.
5th—That the circumstances attending the commission of the act
charged, irrespective of the above considerations, tested by the prin-
ciples of international law, assume no other character than an
act of robbery. It has been stated that if the prisoners were not
extradited, the consecuences might be to involve us in a war with
wan ee
eee ch
362
the United States. Such an event is possible, but I have reason
to hope it will not occur. The United States have a right to expect
a fulfilment of our treaty obligations—the strict observance of our
declared neutralit,,, which prohibits our countenancing the acts of
the prisoners, which are not only a violation of our municipal rules,
but also of international law. I deem it my duty, however, as one
of the representatives of the Crown, to disclaim all intention to urge
that consideration as a ground for extradition. It is very far from
being the desire of the Government, to avert the consequences of
a war, by unjustly offering as a sacrifice the liberty of any man. God
forbid that this should ever be the case. Speaking as a true English-
man ought to speak, I say that Mngland, and her loyal subjects i in
Canada, would far sooner meet war, with all its direful consequen-
ces, than that its Judges or its Courts should become the instru-
ments of injustice and oppression. But Ido not conceal the fact that
your Tfonor’s decision is looked forward to with some anxiety—one
laudable and praiseworthy, and which every nation and government
should feel—the anxiety to preserve its honor and good faith in the
execution of its conventional obligations, with other nations. ‘The
honor and good faith of our Government is therefore in a measure
involved in this inquiry, and they will not, I feel confident, suffer
at your Honor’s hands.
Hon. Mr. Abbott, Q. C., in reply :—
When I review the immense accu-
mulation of matter that has been laid before the Court during
these three days, which it devolves upon me now to analyse and
discuss ; and the lengthy arguments entered into by the learned
Counsel on the other side, to which I am now called upon to reply ;
the task appears of appalling m: agnitude. Notso much on account of
the applicability to this case, of either the citations or the argu-
ments, but chie fly because of the enormous number of authors and
books which my learned friends have cast before your Honor, as I
conceive almost indiscriminately, and with but little regard to their
connection with the pomts of law arising in this case. And another,
though a minor difficulty which meets me at the outset, is, that my
learned friends do not quite agree upon the grounds upon which
they demand the extradition of these prisoners. Some of them
think, for instance, that the ceasonimy of the Upper Canada Judges
in the Burley case was right, and some appear to think it was
wrong ; though as a matter of course they agree that the conclusion
arrived at was the right one.
Mr. Bethine.—We never said their reasoning was wrong.
Mr. Abbott. —Well, I do not know whom my learned friend
means by ‘ we ;”’ but as I find that the advocates for the extradition
»agon
xpect
f our
ets of
rules,
is one
urge
from
ces of
God
iglish-
ets In
quen-
Instru-
et that
r—one
‘nment
. in the
. The
veasure
, suffer
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se and
learned
reply 3
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> argue
ors and
rv, as I
to their
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f them
Judges
it was
hclusion
aq .
friend
radition
SO
3638
of these prisoners, who appear here on behalf of the Crown ; are not
less urgent and violent than those who appear on behalf of the
United States; and though differing, as T have already said, as to
the meaning of many of the authorities, and as to not a few points in
the case—that the ry all desire the same object, namely, the rendition of
the prisoners ;—I think I may be justified in classing my four
learned friends in the same category. And when I find them dis-
agreeing as to the law, and as to the grounds on which these
gentlemen are to be sent over our lines, I think I may remark
upon the circumstance as being one which is to some extent
perplexing: and which adds to the difficulty of replying to their
arguments.
‘Tt is not my intention however to examine the authorities my
learned friends have cited, book hy book, page by page, to sec how
far the propositions of law deduced from those citations apply to
this case, or how far the propositions they profess to find theve
are sustained. ‘To do so would be trespassing too much on your
Honor’s time ; and would be implying a doubt of your fully appre-
clating, as you now unquestionably do, all the points in this case.
Sut though my views of the case may be unnecessary and super-
fluous ; to express them is a duty I owe to myself and to my chents.
And though E must necessarily oceupy considerable time in their
development, I shall endeavor to restrict myself as much as the
subject will permit me to do.
In pursuance of this object, therefore, [ propose to seck among
the authorities and arguments of my learned friends for those
points which appear really to bear on the questions submitted to
your Honor; and with regard to the remainder, I shall endeavor
to show that they have uo just application.
But first. 1 think it is my duty to place the prisoners, and the
prete nsions of their advoeates, in their proper position. My learned
friends opposite have expended a great deal of eloguence—I should
rather say declamation—in enlarging upon the disadvantageous
position In whieh this country would he placed, and upon the disas-
trous consequences which would Sal to it, if you decided not to
extradite the prisoners. We have been informed that it is our duty
to carry out the Ashburton ‘Treaty ; and extracts from several au-
thors ‘ave been read to prove that we le under such an obligation.
It has heen assumed that the discharge of these men would be tan-
tamount to v declaration that persous might, with impunity, make
incursions into the United States from our territory, and might re-
turn to it to re-engage in hostile operations from time to time. That
py holding that the law did not justify your committing them for
extradition, you would necessarily also hold that such persons had
a perfect right to make our neutral territory a base for such enter-
ea i se nt tO Nie a ge
864
prises against the United States; and that the maintenance of such
doctrines would end in involving us in war, or in serious quarrels with
our neighbors. Every one of my learned friends has urged or as-
sumed, that you must cither commit these men for extradition under
the Ashburton Treaty, or approve of the attack on St. Albans ;
that you must hold that the attack was perfectly justifiable and
legal, and not even an infringement of our own laws, even though it
had originated in Canada; and that you must interpose your au-
thority to protect the prisoners in their unlawful conduct; or that
you must extradite them. But all these merely constituted some of
the numerous fallacies which the Counsel opposite have placed
before us, and they are not in the least degree more transparent than
many of their fellows. We insist in the interest of our clients that
you are bound to give effect to the Ashburton 'Treaty— but only in
accordance with its true intent and meaning. We do not claim or argue
that this attack on St. Albans was justified by the laws of Cuaada, We
do x.ot ask your Honor to hold, or assert that you ought to hold, that the
prisoners had a right to make Canudaa base of operations against the
United States, or that you shonid protect them in organizing expedi-
tions from Canada into the United States ; nor do we argue that they
should be discharged on the ground that hestile incursions from
Canada are justifiable by our Jaws. I claim that by discharging
the prisoners, you would hold nothing of the kind. A decision that the
prisoners are not Liable to extradition, will not involve any judgment
upon the charester, as regards the Canadian Government, of the
act they committed ; nor will it decide that the prisoners may re-
turn to the frontier-line, and engage in a similar enterprise, return-
ing once more to Canada. Your decision will not touch any of
these matters. The argument of the Counsel who opened the case
for the defense was, not that you should approve of what was done
at St. Albans, but that it was not within yeur province on this
occasion to pronounce any opinion upon it; that the prisoners’
Government alone had a right to deal with that matter. We say
now, as before, that we neither ask your Honor to approve or disap-
prove of the prisoners’ conduct ; we are perfectly ready and willing to
submit that to the appropriate tribunal when the proper time arrives.
The decision we seek will not require you to declare from the
bench of justice, that incursions from this country into the United
States are jusifable or otherwise, or otherwise to give the sanction
of your authority to a. act of the kind, or your protection to the
perpetrators of it. What the Counsel for the prisoners contend for
is not approbation of the prisoners’ conduct, but a declaration that
their case does not fall within the Ashburton Treaty. We do not
ask that the Treaty be disregarded ; but that it be only made to
apply to circumstances consistent with its intention. ‘This is all I
F ES alc gk tae
pene
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or as-
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365
propose to say on what constitutes a large proportion of the addresses
of some of my learned friends opposite.
There is another part of those addresses which I propose to dis-
miss still more summarily, and that is the extensive yocabulary of
vituperation with which we have been favored. In that kind of
contest Iam not disposed to engage. If the arguments of the
learned gentleman to whom these remarks more ¢ particularly apply
were as strong as his epithets, I should be disposed to give up the
case in despair. But as [hope to be able to shew that his law is
as bad as his language, I shall leave this portion of his address
without further comment.
It seems to me that in order to arrive at a proper application
of the principles of law which really do govern this case, it is
necessary to discover what the facts are: and to that I shall
first apply myself. In presenting these facts to your Honor,
IT shall endeavor to state them exactly and fully, not selecting
a portion of a document or a deposition, and holding it up
as conveying all the truth; but shewing the details of every
circumstance put in evidence ; the legal effect of it, and its bearing
upon the merits of the case. With this view I shall go over the whole
of the testimony, verbal and written, and try to place cle: uly and con-
secutively before you what it establishes. The learned gentlemen
opposite deny that you have any right to enquire fully into the
facts—thev say that you have no right to examine them, au fond—
that it is sufticient if a prima facie case be established ; by
which they appear to mean that you shall look only at the
facts they choose to place before you: and that you shall not
enquire how far the acts with which the prisoners are charged,
are qualified by matters which remove them from the operation of
the Ashburton Treaty. Ma. Johnson and Mr. Devlin have both
urged this view; aud have been so far consistent in it, that from
the first they have insisted that your Honor was bound to commit
for extradition, merely upon a deposition being laid before you,
shewing that the prisoners had entered the bank of St. Albans,
and taken by violence #300 from Mr. Breck. In answer to this
pretension, i shall refer to an authority or two which I think appli-
cable to this point, to show what I conceive to be really your
Honor’s duty in this behalf. These authorities are the same,
which, strange to say, my learned friends have cited as supporting
their view, but which appear to me to have a contrary ten-
dency. The Chesapeake and Geiity case sare those of which
I speak, and which I think establish, not that you are to try
these men; but that you should find out, if possible, from the evi-
dence before you, whether a robbery within the meaning of the
Ashburton Treaty was really committed at St. Albans by these
Pe ee eee oe ee
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A. en ec Ue
366
men, as charged in the information. And the first clement in this
enquiry is, whether any robbery at all was committed. If it be
not shown positively that there was a robbery committed—if we
have not a corpus delicti, the case is at an end. Your Honor
would not commit a man for robbery, unless you were satisfied a
robbery had been perpetrated. You would require proof that
some offence had been committed, before sending the accused to a
trial. I deny that a robbery was committed in “St. Albans, of the
description mentioned in this information; or that any ‘offence
whatever was committed there, for which the prisoners are amenable
to any municipal tribunal whatever. ‘There is no disputing the fact
that the prisoners were at St. Albans on the 19th October last,
that they pillaged the town, set it on fire in three places, and
that in the skirmish a man was killed. But I say, that pillage was
not robbery, that burning was not arson, that killing was not mur-
der. Surely these questions must be decided before ordering the
extradition of the prisoners ; an order whereby, if our pretensions are
correct, an immeasurable wrong would be done to them which no
trial in the Federal States could repair, as their only defence would
be rejected as insufficient in law by any court in those States. ‘his
is the view which I submit is sustained by the Chesapeake case.
At page 46 of the report, Judge Ritchie says: “ Zhe duty of deter-
“ mining on the sufficiency of the evidence is cast on the Magis-
“ trate or other officer. He is the person to be satisfied that the
‘* evidence justifies the apprehension and committal for trial uf the
“¢ persons accused. The amount and value of that ‘evidence is for
‘© his determination. : i ig It is a judicial discre-
“ ¢ion with which he is vested.” It is to be observed that Judge
Ritchie was disposing of an application for the discharge of the
prisoner Collins, under a writ of habeas corpus, one eround of
which application was, that the act of seizing the Chesay: ‘enke was
a belligerent act, in the interest of the ( Confederate States. And
he is arguing that he cannot be regarded as sitting as a “¢ Court of
Review or Error,” on the decision of the mauistrate. Yet, he says,
“if it was manifestly apparent that the evidence showed that'no
‘+ offence had been committed, or that the party was unquestionably
‘“‘ innocent, and that, therefore, there was really no matter of fact
‘ or law to be tried; no matter in which a magistrate could exer-
** cise a discretion or judgment, then the case would be very diffe-
‘‘yent.”” And what would Judge Ritchie have regarded as being
sufficient, to make it ‘ apparent that no offence lad been com-
mitted’’; that the party was unquestionably innocent?” Such as
would leave the magistrate no judicial discretion to exercise ; and
would compel him, on habeas corpus, to discharge the priosners ?
Why simply, that the prisoner Collins should have proved, either
a
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that he was a subject of the belligerent State, or that being
a British subject he had a commission from the belligerent State.
If either of these facts had been clearly established, it is plain from
his language that he would have held that there “ was nothing for
** the magistrate to deliberate upon: nothing for a Superior Court
‘or a jury to try.’ Ife shews that the evidence does not
prove that Collins and his party were * acting under a regular
commission,” or were belligerents themselves,” or * that. the
expedition proceeded from the Confederate States.” If any of
these three conditions had been established, it is clear that he
would have held that the magistrate had no right to commit: had
no matter before him susceptible of the application to it of a judicial
discretion. In the Chesapeake case, none of these conditions were
to be found; the prisoner was a natural born British subject: and
the only proof of the rank claimed, was a paper signed by another
natural born British subject, who asserted himse If to be a com
mander in the Confederate Navy; but who failed to prove that
he held that rank, and still more that he had cither direct or
indirect authority to confer it upon other people. It is not surpris-
ing that with a case like that, Judge Ritchie felt that he could not
say that the magistrate had no facts before lim io justify the com-
mittal of Collins ; for the seizure of the vessel was undemable, and
no legal proof whatever was offered to justify it. But how would
the Judge have acted, how would he have held that midwistrate
having original jurisdiction ought to have acted, if all three of
these elements had been combined? If all ae conditions of
things were proved to exist, any one of which he held would have
virtually taken the case out of the jurisdiction of the magistrate ?
If it had been proved that Collins was a commissioned officer of the
Confederate States, and that he and his men were subjects of the
Confederate States, nay more, enlisted soldiers of the Confederate
States ; and that the design of carrying out similar enterprises
originated in Richmond ; and that “ the plot was concocted,” not
in St. Johns, New Brunswick, but in Chicago; and that the act was
committed—not on the high seas, which belong to no one—-but in
the territory of the other belligerent itself, twenty miles from its
borders. How long would Jule Ritchie have hesitated to declare
that Mr. Gilbert had done wrong by committing Collins for extra-
dition—that he had pretended to * exercise a judicial discretion,”
in holding the facts sufficient to warrant that commitment ; when in
fact “it was apparent that no offence had been committed,” and
that there “* was no matter in which the magistrate could exercise
a discretion?”? Or rather, I may ask, what magistrate within this
realm could be found, who would give Judge Ritchie, or any other
Judge, occasion to discuss such a question !
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368
The Chesapeake case, therefore, clearly cannot be made available
for the prosecution to shew that your Honor, having primary juris-
diction in this matter, ought not fully to investigate “the facts of the
vase, and decide, in the exercise of your judicial (liseretion, whether
or no any such offence as that charged has re: uly been committed.
In the Gerity case the doctrine held by the Judges seems to have
been the same, Notwithstanding what Mr. Johnson has said, in
regard to it, the language of the Chief Tustice of England, in dis-
cussing the question whether or no there was sufficient evidence to
shew that the seizure of the Gerity was made on behalf of a bel-
ligerent, entirely sustains my pretensions.
“T agree in everything Mr. James has said,” (says Ch. J.
Cockburn) ‘as to acts with the intention of acting on behalf of
“ one of the belligerent parties.’ What did Mr. James say ?
Piracy depends on circumstances; and acts which in a time of
* peace would be evidence of the crime, are not so when done by one
© belligerent ayainst the other.” Again: * Further even private
“ subjects were, so far as the enemy was concerned, and therefore
“ go far as to exclude them from the class of pirates, entitled to
* seize without authority from their government, property belong-
“ing to the enemy.” "The Chief Justice adds that he canrot
say that the magistrate was not justified in committing the pri-
soners for trial :’? but why? Because the sole evidence of their
belligerent character consisted in their stating when they seized
the vessel—that they did so on behalf of the Confederates. There
was no difference of opinion among the Judges of England on the
point under consideration, though “this was not the ground upon
which they were discharged. ‘The dilemma under which that dis-
charge became necessary is well put by Mr. Justice Blackburn.
He says “ the case is either one of piracy by the law of nations—
in which case the men cannot be given up because they can be
tried here; or it is a case of an act “of warfare, in which case they
cannot be tried at all.
It is unnecessary to reiterate here the same illustrations of the
effect of the Chief Justice’s views, in which on this point his col-
leagues agreed,—which [ have apyiied to those of Judge Ritchie.
The inference is precisely the same in both cases—and it is the
reverse of that jor which the prosecution contends. In that case
there was but a scintilla of evidence of the belligerent character or
intent of the prisoners: and that being of their own creation, could
only be admitted at all on the ground that it formed part of the res
gestee. The only evidence of their acting for the Confederate Gov-
ernment was their own declaration to that effect when they took
possession of the vessel; yet the English Judges speak with con-
siderable hesitation i dealing with their case. ‘They do not say—
de available
mary juris-
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ion, whether
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In that case
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°69
we are of opinion the prisoners should be committed for trial; but
merely—we cannot take upon ourselves to say they should not be
so committed. No one can read the report of the Cerity case ,
without being satistied that if there had been any more evidence,
than the declaration of the men themselves that they were acting
for the Confederate Government, the Court would have discharged
them on that ground alone. It is a proof of the care and impar-
tiality with which such questions are viewed in England, that all
the Judges take into consideration the presumption of be ‘lligereney
afforded by the declaration of the prisoners, though they hold it insuf
ficient to warrant their interference with the jurisdiction of the
magistrate who tried the case. If the prisoners had proved that
they acted under an officer of the Confederate navy, us Jer wriiten
instructions from Commodore Barron at Brest, would there have been
any hesitation on the part of the English Judges in dealing with the
matter? Theirow ‘cfain that case; the authorities that have been
cited from write: . international law—the dicta of judge Ritchie ;
of the Judge at Bermuda in the Roanoke case, which the Govern
ment of England, as evidenced by Lord John "Russell's despatch,
have approved of,—all show that the mere possession of naval or mili-
tary rank, if not the mere national character of the aguressor as a
belligerent, is sufficient in itself to justify hostilities against an
enemy in an encmy’s territory. And I commend this case “to the ; at-
tention of my learned friends op posite, not only with regard to this
point, but to another raised this morning. I refer to the supposed
effect of the neutral character of the aggressor: or of the enterprise
having proceeded from nuetral territory. But it will be my duty
to discuss this point more at length in its proper place. The rule
T am now contending for has not been unknown, or unobserved in
similar recent cases on this continent. There has been a case
lately at Sherbrooke before Judge Short, and another before an
Amer.can Judge at Detroit in which it has been recognised and
acted on. In the former case Judge Short declared that he would
have felt justified in ordering the taking of evidence on behalf of the
defence, to satisfy himself that the offence was within the Treaty,
if tixe prisoner had not applied for the privilege of doing so. And
in the latter, the prisoner was discharged after the reception of
evidence on his bchalf—the evidence for the prosecution taken by
itself being complete. In the Burley case, also, delay was granted
to procure evidence to be placed before the Judge, as to the nature
of the offence committed: and that evidence was weighed, and. dis-
cussed by the Judges—though with a conclusion to which | cannot
assent—and which I venture to assert will not be assented to, and
and I have the best reasons for knowing is not assented to, even by
Federal lawyers.
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370
I have now perhaps devoted more time than was absolutely neces-
sary to the discussion of this branch of the case, and I turn, as I
stated I would do, to the facts—to the actual state of the evidence
as regards the position of these men, and their authority for what
they did. Upon these points we have had a great deal of discus-
sion ; and it is proper that they should be fully appreciated—tor
till we arrive at some decision upon these, voluminous citations are
of little use. In reality was the act now complained of an ordinary
felonious robbery, or a hostile or a political act, arising out of the
unfortunate state of things now existing between our neighbors ?
what is the status of the prisoners, and who are they ?—are they
British subjects, as my learned friends opposite pretend ?—have
they acquired a domicile in this country that deprives them of their
national character ?—that divests them of their allegiance to their
parent state ?—Or are they citizens of the Confederate States? Is
Mr. Young a subject and a commissioned officer of that power ?
are his comrades the soldiers as well as tio subjects of that power ?
Now I contend that we have proved beyond dispute that it is the
latter state of things which the evidence demonstrates to have
existed.
The first document I shall refer to as establishing this point is
his commission, which reads thus (p. 80) :—
CONFEDERATE STATES OF AMERICA,
Wark DEPARTMENT,
Richmond, June 16th, 1864,
Sir,—You are hereby informed that the President has appointed
you First Lieutenant, under the Act 121, approved February 17th,
1864, in the Provisional Army in the service of the Confederate
States, to rank as such from the sixteenth day of June, 1864.
Should the Senate at their next session advise and consent thereto,
you will be commissioned accordingly.
Immediately on receipt hereof, please to communicate to this
Department, through the Adjutant and Inspector General’s Office,
your acceptance or non-acceptance of said appointment, and, with
your letter of acceptance, return to the Adjutant and Inspector
General the oath herewith enclosed, properly filled up, subscribed,
and attested, reporting at the same time your age, residence, when
appointed, and the State in which you were born.
Should you accept, you will report for duty to
(Signed) Jas. A. SEDDON, Secretary of War.
Lieu. Bennett H. Young, &c., &c., P.A.C.S.
This is a document which undoubtedly, by its terms, confers on
Bennett H. Young the rank of First Lieutenant in the provisional
ate States of America. Well, if this is not a
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371
commission, what is? ‘True, itis ne. on parchment ; it is not signed
by the President, nor does it purport to emanate from the Senate of
the Confederate States ; it is not approved and confirmed by the
Senate, nor does it bear the great seal. I give my learned friends
the benefit of all these negatives; but yet it undoubtedly is genuine,
and it has a certain effect. What is the effect of it?—Is it, or is
it not a document which gives to Bennett H. Young the position
of lieutenant of the C. 8. army; I ask my learned friends opposite
if Mr. Young is not entitled, under this document to the rank of
Lieutenant in the provisional army of the United States ?
Mr. Bethune.—I say no.
Mr. Abbott.—Who is to judge whether he is or not?
Mr. Bethune.—A jury.
Mr. Abbott.—A jury indeed! That sounds very plausible, and
very well; and it would answer my learned friend’s purpose admirably,
to refer all these questions to a jury in the Federal States. But
what would a jury in the Federal States be instructed to say?
What would a Judge feel bound to tell them? I will inform the
learned gentleman. The Judge would thus address the jury:
‘‘ Gentlemen, the only evidence of the independence of a separate
‘¢ Government, or even of its belligerent character, which you can
‘“‘ recognize, is the declaration of the Executive Government of
‘¢ these United States. Until that Executive decides that the
‘¢ so-called Confederate States are entitled to recognition as an
‘‘ independent State, you cannot notice their pretensions to such a
‘¢ position; for it is not for courts of justice, or Judges, or juries, to
‘¢ say whether another nation, or section of a nation, is entitled to
‘“‘ the rights of a separate state. Therefore, as the Executive has
‘‘ not declared that the so-called Confederate States are entitled to
‘¢ the position and rights of a separate sovereignty, you must entirely
‘‘ disregard this commission. You are bound to take the law from
‘* me, and I teli you that the law is, that the most valid and formal
‘¢ commission which Mr. Davis can issue, is as a piece of blank
‘¢ paper in the eye of the law.” I assert this, because I know that
a jury was in effect thus charged by Judge Nelson of New York,
in the Savannah case, under similar circumstances; and I believe
that the charge of Judge Nelson was correct from his point of
view. And it is precisely because I believe his view to be that
which every Judge in the Federal States must hold, that I raise
my voice with such persistent earnestness against the monstrous
pretension, that your Honor is to refuse to examine this document,
or to exercise your judicial discretion upon it; and that you are
bound to remit the consideration of the effect of it, to a tribunal
which cannot lawfully even look at it. I say that to adopt such a
view, would be to disregard every principle of justice, every im-
372
pulse of humanity ; and to degrade the position of a British magis-
trate, exercising freely, independently, and intelligently his learn-
ing and his judgment; to that of a hireling scribe, recording, with
slavish pen, the ukases of a foreign cabinet. I say, your Honor,
that it is you who now can, and must, decide this question. It is you
who must say whether or no, according to your conscientious belief
as a Judge, upon the evidence before you and the law, this instru-
ment, either by itself, or followed by the other documents of record,
entitled Mr. Young to the rank of a Lieutenant in the Confederate
army. And you must decide, because that rank is an essential
part of the state of things which, the prisoners claim, takes from
their hands all stain of guilt; and because, if that state of things
really did exist, you have no right to cause these men to be handed
over to their natural enemies for execution. I say for execution ;
for their commitment might well be accompanied by the same
solemn recommendation to the mercy of the last and highest Tri-
bunal, as follows the last and most awful sentence of offended human
justice.
: The contents of this instrument render it easy to discover
its effect. ‘‘The President has appointed you First Lieutenant,
&c., to rank as such from the 16th June, 1864.” So far no com-
ment is needed. But the learned Counsel say that it is subject to
confirmation by the Senate. ‘True, so are all acting appoint-
ments subject to confirmation by the sovereign power. In our
own army, and in every army, and in every navy, acting ap-
pointments are made subject to confirmation by the sovereign ;
but they are not subject to the imputation of nullity, either by
a neutral or by a belligerent, pending that confirmation. No
one would venture to assert that a gentleman holding an
acting appointment in the British army or navy could be treated as
a robber on land, or as a pirate at sea, because his acting appoint-
ment awaited confirmation by Her Majesty. Besides, in the
present case, the intention is plain. Lieut. Young is not told that
he will be recommended for appointment by the Senate; but that
the President has appointed him. He is not told that he will
rank from the confirmation by the Senate, but that he will rank as
Lieut. from the 16th June, 1864.
But the learned Counsel say that there are conditions precedent
to this appointment, and that there is no proof that those conditions
were fulfilled. My learned friends are mistaken. There are no
conditions precedent at all, and there are no conditions which affect
the rank of Mr. Young, except the acceptance. He is directed to
take an oath, to report his age, his residence when appointed, and
the State in which he was born. If he failed to report his age, or
reported it incorrectly, would he be for that reason liable to be
CRRRIS SS aioe antec ni, —
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373
treated as being without rank in the Confederate army? If he
were captured on duty by the Federals, and they could succeed in
proving that he had not taken the oath; or if he failed to prove
that he had taken it, could they hang him as an uncommissioned
marauder? I ask these questions because it is sufficient to put the
propositions of mv learned friends in that form, to render reasoning
upon them superfluous.
But my learned friends will say the acceptance is more important ;
that it is essential. I think myself that evidence of an acceptance
of some kind, either expressed or implied, is important, but I contend
we have it here in half a dozen forms. Before entering upon the
evidence of acceptance, I would remark, however, that the test of
Mr. Young’s rank in the Confederate army, is the rank which he is
recognised to hold, and which is allowed to him by the military
authorities of the Confederate Government. It is not for a neutral
nation or a neutral Court, to enquire how far a foreign State is
justified b,, its own laws, either in conferring rank on its own sub-
jects, or, what is equivalent to it, in recognising one of its own sub-
jects as possessing a certain rank. The best judge, so far as we
are concerned, whether a man holds rank in the Confederate army,
must surely be the head of the war department of those States; and
if he recognises Mr. Young or any one else as an officer of that
army, treats him as such, confides to him as such important enter-
prises and an independent demand, it does seem to me impossible
for us, as neutrals ; or for the other belligerent, who is now an appli-
cant before this tribunal; to deny him that position. Our Sovereign
has recognised the Confederate States as belligerents. Surely we
cannot deny them the right of appointing their own officers, or
of deciding, in the last resort, so far as we are concerned, who are
or are not their own officers.
If this be conceded,—and Ido not see how it can be denied,—the
matter is settled by the three letters of instruction marked N, O, R.
These papers show that Mr. Young was recognised as a Lieut. in
the army of the Confederate States ;.and they convey to him not
only the power to organise a company of twenty men, but numerous
instructions of a peculiarly onerous character which will be hereafter
referred to. Paper N, (p. 80,) is as follows :
CONFEDERATE STATES OF AMERICA,
War Department,
Richmond, Va., June 16th, 1864.
Lieut. B. H. Young is hereby authorized to organise for special
service, a company not to exceed twenty in number, from those who
belong to the service and are at the time beyond the Confederate
States.
374
They will be entitled to their pay, rations, clothing, and trans-
portation, but no other compensation for any service which they
may be called upon to render.
The organisation will be under the control of this Department,
and liable to be disbanded at its pleasure, and the members returned
to taeir respective companies.
JAS. A. SEDDON, Secretary of War.
Paper R (p. 216) says:
: CONFEDERATE STATES OF AMERICA,
War Department.
Richmond, Va., June 16th, 1864.
To Lirvut. Bennett H. Youne :
Lieut.,—You have been appointed temporarily 1st Lieut. in the
Provisional Army for special service.
You will proceed without delay to the British Provinces, &c.,
Xe.
JAMES A. SEDDON,
Sec. of War.
Paper O (p. 206) is as follows:
CONFEDERATE STATES OF AMERICA,
War Department.
Richmond, Va., June 16th, 1864.
To Lizut. BENNETT H. Youne:
Lieut.,— You have been appointed temporarily First Lieut. in the
Provisional Army for special service. You will proceed without delay
by the route already indicated to you, and report to C. C. Clay,
jun., for orders. You will collect together such Confederate soldiers
who have escaped from the enemy, not exceeding twenty in number,
that you may deem suitable for that purpose, and execute such
enterprises as may be indicated to you. You will take care to
organize within the territory of the enemy, to violate none of the
neutrality laws, and obey implicitly his instructions. You and
your men will receive transportation and customary rations, and
clothing or communication therefor.
JAMES A. SEDDON,
Sec. of War.
I submit as a perfectly unassailable and incontrovertible propo-
sition, that each one of these documents proves that the Government
of the Confederate States of America, by the head of its War
Department, has recognised and acknowledged—and if we may
judge by the active interposition of the President of the Confed-
in the
t delay
. Clay,
boldiers
umber,
e such
care to
of the
Dit and
gs, and
Var.
b propo-
rnment
its War
ve pe
onfed-
375
erate States, and of the Secretary of State—in authenticating and
transmitting to this country, the copies of these documents which
were brought from Richmond by Mr. Cameron; do still acknowledge
and recognise Mr. Young as a Licutenant in their army. And that
if the commission itself and any two of the other papers had been
lost, and could not be proved before this Court, the remaining one,
whichever it might be, would sustain my position.
I do not of course put this part of my argument in any respect
upon the ground that the Confederate States are entitled ‘to recog-
nition by your Honor, as an independent and sovereign State, as
Mr. Carter this morning assumed that we did, or that it was neces-
sary for us to do, in order to establish Mr. Young’s rank. The
Government of England does not recognise the Government at
Richmond as independent, but it does recognise the Confederate
States as belligerents ; and the very authorities cited by Mr. Carter
shew that the recognition of a party to a civil war as a belligerent,
involves the recognition of every right which is necessarily incidental
to astateof war. Now the power of issuing commissions, of appoint-
ing officers in its own army, is certainly necessarily incident to a state
of war, and to the position of every belligerent; and it is a right which
we must recognise in the Government of the Confederate States. If
so, we must permit that Government to appoint the officers in their
army, and we must admit that it is the best judge as to those
who have been so appointed. Do my learned friends presume that
President Davis and Secretary Seddon do not know whether or no
Mr. Young has been validly appointed a Lieutenant, taking rank
from 16th June, 1864? The latter says, in writing to Mr. Young:
“The President has appointed you First Lieutenant in the Provis-
ional Army of the Confederate States, to take that rank, from the
16th June, 1864.” Is that false, or a forgery? They have not
attempted to urge that it is a forgery.
Mr. Bethune.—We have not said so.
Mr. Abbott.—No, they have not presumed to say 80, although
they undoubtedly would have said so, had there been the slightest
foundation for such an imputation.
Mr. Bethune.—Have we charged any one testifying for the
defense, with an untruth ?
Mr. Abbott.—Yes, you have charged Mr. George N. Sanders
with ap untruth. One part of his testimony has been quoted by
the prosecution ; while another portion, which destroyed the infe-
rence attempted to be dawn from the first part, has been slighted by
you as unreliable.
After some further discussion, and the disclaimer by Messrs.
Bethune and Devlin, of any intention to assail the veracity of
Mr. Sanders, as a witness,
376
Mr. Abbott resumed. My learned friend, Mr. Devlin, has
appeared to rest an objection on the ground that this document did
not emanate from the President direct. But no one is generally
recognised as being more competent to decide whether any named
official act has been done or not, than the head of the appropriate
department of the public service. No one could be more com-
petent to establish, that this particular act was done in a foreign
country, than the Secretary of War for that country. I suppose
we should consider the Secretary at War for England the best
authority, as to whether or no such and such persons were ever
commissioned by the Government, as officers in the army of that
country. If we had written instructions from the Secretary at
War, or even from the Deputy Adjutant-general of Militia, addressed
to my learned and gallant friend, Col. Devlin, as colonel of the
Prince of Wales Rifle Regiment, by his name and rank, we should
have no difficulty in sustaining his action on those instructions,
without requiring the production of his commission, even if his rank
and the gallant regiment he commands were less conspicuous than
they are. And ifa foreign country or Government, whether Federal
or Confederate, were to refuse to recognize his action under those
instructions as an officer of Her Majesty’s loyal volunteers, he
would feel even more indignant, if possible, than he has shown him-
self to be, at the proposition that Lieut. Young is entitled to the ben-
efit of a similar recognition. What would he think or say if he were
told, we will not accept that evidence of your rank ; we must have
the signature of Queen Victoria herself? But really, such objections
as this are the merest trifling, and are unworthy to be urged before
any Court. It is necessary, however, since they have been started,
to examine and to answer them, and I proceed with them, as a task
which must be completed.
My learned friends have urged with considerable earnestness
that we must presume that Mr. Young did not report to the
Secretary of War, his age, residence, &c., &c., nor take the oath,
nor accept; because they say we have not got authentic copies
of these documents—and they say de non apparentibus, et non
existentibus eadem est ratio. Now I have already shewn that none
of these proceedings were conditions precedent to Mr. Young’s
holding the rank of lieutenant ; and as they were not, and were in
fact mere routine matters in the department of war, they were in
no respect necessary to be produced here. ‘The point to be proved
here was not the taking of the oath by Mr. Young, the return
of his age, or any of these minor formalities. The point was Mr.
Young’s possession of the rank of lieutenant, and that is now before
your Honor. He was appointed and ordered to do what his
instructions shew—and he did it. Is there any better proof of the
reign
ppose
best
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f that
ry at
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should
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ELSI Sm EDIE
Sabai) weak
art *
acceptance of an appointment than entering upon and performing
its duties.
Mr. Bethune.—HUe should have accepted by letter.
Mr. Abbott.—Probably the letter of acceptance and the oath
with the required reports were returned together to the Adjutant
General. But if the acceptance was not in writing, what was the
consequence ? Was the appointment invalid—even though the Con-
federate Government were satisfied with a verbal acceptance or
with one signified by deeds, not words? Surely that direction was
not inserted in the interest of the Federal Government.—And if the
Confederate Government chose to employ Mr. Young upon distant
and dangerous enterprises, without waiting for or requiring a written
aceeptance of the trust they confided to him; it is not for the
Federals to insist that they acted illegally by doing so. Whether
Mr. Young did or did not send in an acceptance in writing or take
the oath, I confess my entire ignorance. ‘The reverend gentleman
who so devotedly and gallantly incurred all the dangers of a pas-
sage through the Federal lines to Richmond, was not instructed to
procure copies of these insignificant papers, nor would he be charged
with such a commission if the affair were to be gone over again.
Mr. Bethune.—Nor the necessary confirmation from the Senate ?
Mr. Abbott. —No, it was in no respect necessary. ‘The Senate was
not in session when the appointment was made, and the confirma-
tion for the issue of a commission was in time at any time during its
session, which lasted till long after Mr. Cameron left Richmond. If
this confirmation of the Senate was requisite to entitle him toact as an
officer at all, then the confirmation subsequent to the 19th October
would have had no legal effect. - And we should then assume that
the Government of the Confederate States were mistaken in believ-
ing that Young was an officer of theirs on the 16th June ; that they
were entirely ignorant of their own powers as belligerents ; and that
we know better who were their own officers, than they do th -:::elves.
It would scarcely be a step further in absurdity, to pronc: nce a
judgment in this cause, ordering the Confederate Government to
repay to this Province the $50, 000 voted to repay the St. Albans
banks! We have in fact, from the Secretary of War, three
documents, bearing date 16th June, 1864, in which Bennett H.
Young is addressed by his official title as Lieut. Young; is given
specific authority as such to raise a certain number of men to act
under his orders, and is instructed where he is to go and what he is
to do with those men when raised and organised. Surely this affords
sufficient evidence that Mr. Young had accepted to the satisfaction
of his Government, the commission conferred upon him. If he had
not; would Secretary Seddon have given him this authority and those
instructions ; would he have conferred upon him an important com-
* 378
mand for special service ; would he have sent him by a dangerous
and circuitous route toa distant frontier ; would he have authorised
him to draw rations and transportation allowances for himself and his
command—and all as incidents to a rank which he had not accepted,
and actually did not possess? And if he had not accepted his commis-
sion, how was it that he assumed its duties, that he did proceed by way
of the British Province to the Northern frontier—that he did report
to C. C. Clay—that he did organize his command from among the
Confederate soldiers within the enemy’s lines, viz., at Chicago ; and
in fact that he obeyed his instructions in the minutest particular.
There is no better settled rule of law than that the performance of
the duties of an agent implies the acceptance of the authority—and
in fact constitutes such acceptance; if indeed so obvious a principle
requires a rule of law to enforce it. But even if the Secrétary of
War had chosen to give such instructions to a civilian, and to address
him by a military title, and if they were acted on, would not such
civilian quoad those instructions, have all the privileges and immuni-
ties incident to the rank in which he was acting, and was so em-
powered to act ?
The pretension of the prosecution in this behalf is not, really,
susceptible of argument. Here is a man, recognised by the Govern-
ment, to which he owes allegiance as an officer—recognised as such
by repeated written instructions from the highest official in the state
department of that Government. And your Honor, sitting here, is
asked to deny that he is such officer ; you are seriously asked to say
and think, that Secretary Seddon was wrong in saying that the
President had appointed Young; that he was premature in giving
him these instructions; that he had no right to place Mr. Young
in command of twenty men; that the authority to Mr. Young to draw
pay and rations, clothing and transportation for himself and his
command, was null; and that he was premature in sending him, by
way of the British Provinces, to operate on the Northern frontier
of the United States with which his Government was then and is
now at war! Surely it is impossible that any Court in a neutral
country can assume such a position as this, and hold that official
documents issued by the highest official of another State have no
value at all ; and that contrary to the necessary inference from these
documents, conditions were imposed preliminary to giving effect to
this commission, which were never performed.
The question of the validity of this commission from Mr. Carter’s
point of view, I shall discuss at a subsequent period of the argu-
ment. What I have hitherto said respecting it, has been entirely
based on itself, and on the three documents issued from the War
Department. But there has been parol testimony placed on re-
cord about this document to which I shall refer as sus‘ainng my
ARR RA ) where ereaE
gerous
horised
and his
cepted,
ommis-
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ong the
ro; and
ticular.
ance of
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ot such
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so em-
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the state
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rd to say
hat the
n giving
. Young
P to draw
and his
r him, by
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and is
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t official
have no
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Carter’s
1e argu-
entirely
the War
1 on re-
ming my
379
views. Adjutant General Withers (p. 205), Brigadier General
Carrol (p. 207), Dr. Pallen (p. 209), Mr. Cleary (p. 211), Major
Wallace (p. 212), all swear in effect that the instrument, paper
M, is the only form of commission used in the Confederate army,
and give other information as to its nature and effect, for which I
refer to their testimony.
Judge Smith.—As to the acceptance, it is said by these witnesses
that the oath is returned to the department. Is there any evidence
of that ¢
Mr. Abbott.—None, except what is to be drawn from the fact that
the Secretary of War subsequently gave him his instructions as
an officer.
Mr. Bethune.—Both were written at the same time and issued
on the same day.
Mr. Abbott.—So it follows that because they were written on
the same day, they must have been written at the same time! Surely
the presumption is the other way. If there were any conditions
precedent to his becoming an officer to be performed in the war
department, the natural inference is that he performed them : since
the Secretary of War is the head of that department, and must be
presumed to know whether they were complicd with it or not. And
if the instructions bear date the same day as the commission, and
attribute to the recipient the rank named in that commission, the
presumption is not onky that the instructions were subsequent to
the commission, though on the same day ; but also that the condi-
tions were performed in the interval.
Mr. Devlin.—The Secretary of War says—“ you have been ap-
pointed.” Do you suppose he would have been informed of his
appointment, if he had already sent in his letter of acceptance of
that appointment ?
Mr. Abbott.—Well, this is rather strange reasoning. My learned
friend’s logic just amounts to this—because the Secretary of War
says, ‘“‘ you have been appointed,” the inference is that he had not
been appointed, or that the appointment was not complete.
Mr. Devlin.—No, you pretend that the instructions followed the
commission—that there was a lapse of time between the issue of
each. I say the instructions, on their very face, show they must
have been prepared ; if prepared by the Secretary of War at all;
at the same moment that the so called commission was made, be-
cause he states in the instructions—‘ You are hereby informed
you have been appointed First Lieutenant,” and so forth. Would
the Secretary have said on that occasion, that Young had been
appointed if he had already been made aware of the fact ? Why in-
form him three times, in three different papers, that he had been
appointed ?
380
Mr. Abbott.—The argument comes to this: The Secretary of
War had so much time on his hands as to inform Mr. Young in
three different documents that he had been appointed First Lieute-
nant in the C. 8. army; whence it is quite plain that the three
papers were written at the same time. Now, to my mind it seems
quite plain, that if the three papers had been written at the same
sitting, Seddon would not have thought of repeating the same infor-
mation three times. But whether it be so or not, no presumption
against the appointment can be drawn from the fact of the asser-
tion of it being several times repeated. If it were so, however,
the fourth paper (N) would set the matter right. It does really
say—* Licut. B. IL. Youny is hereby authorized to organize,” &c.,
and does not a fourth time inform him of his appointment.
With regard to the other prisoners, we have evidence establishing
their quality and position. ‘This is to be found in part in a docu-
ment to which Mr. Bethune takes much exception. ‘This document
bears the signature of the Secretary of the Confederate States of
America and the great seal of those States, and was specially di-
rected by President Davis in person, to be handed to the Rev. Mr.
Jameron, whom he appointed a special messenger to bring it to
this country; and Mr. Cameron swears he delivered it here in the
same state as when he received it. After all this, my learned
friend (Mr. Bethune) states it contains three forgeries.
Mr. Bethune.—I did not say ‘ forgery” at all.
Mr. Devlin.—* Alterations.”
Mr. Bethune.—In other words, I say it is a “ cooked-up’”’ docu-
ment.
Mr. Abbott.—That is not much better than the epithet I attribute
to you. Your Honor will see that the “ alteration,” or ‘ cooking
up,” consists in this: that the document in question has evidently
been copied in a very hasty manner; and being the muster-rolls of
several companies in the Confederate army, it consists almost en-
tirely of proper names, which are always difficult to copy cor-
rectly. It certainly contains many mistakes in spelling and
transcription, such as ‘¢ B. H.’’ Allan, for * B. R.’’ Allan, which
has been “ cooked up,” by being corrected, though Mr. Allan is
not in this case. In fact, your Honor will see many other names,
perhaps a tenth of the whole, similarly “ cooked-up.”’ I shall take
the liberty, however, of calling these corrections in the spelling of
the names,—made, doubtless, in comparing the transcript with the
original. At all events, those papers are certified by the proper
officer to be correct ; and it would be more charitable as well as
more accurate to say that they were incorrectly copied in the first
instance, and that in the names of two of the prisoners a very
ap change was made, namely, that of one letter, as in the name
of Tevis.
Ee ee Re et Te
tary of
yung mM
Lieute-
e three
t seems
ie same
10 infor-
amption
ie asser-
owever,
3 really
ei, &e.,
blishing
a docu-
ocument
States of
cially di-
tev. Mr.
ing it to
re in the
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p” docu-
attribute
cooking
vidently
r-rolls of
most en-
opy cor-
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e proper
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he name
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381
Mr. Bethune.—He is Fevis in both instances.
Mr. Abbott.—Oh no. There is a very slight alteration in one
letter in each of the names 'I'evis and Swager, which the learned
gentlemen opposite say were ‘* cooked up ;” from which they argue
that the document affords no evidence that those names were origi-
nally on the muster-roll. In the case of Huntley, it is said that the
letters required to complete the name of Hutchinson were added to
the initial H. But there is nothing in the paper itself to indicate
that there has been any such addition. ‘The name is there in full,
*¢ Huntley, Wm. Hutchinson.’”? That the document has been pro-
perly corrected, is undoubtedly the fact. But supposing my learned
friends discard the letters required to make up Huntley’s second
name, they have the name of Huntley, which is proved to be the
name of the person at the bar.
Mr, Bethune.-—But he swears his name is Hutchinson.
Mr. Avbott.—You are mistaken again. He has never been
sworn at all. He has been known as Williaia IL. Hutchinson
instead of William H. Huntley, which is not a very extraordinary
perversion of his name in a strange country, under apprehension of
arrest ; but whether it be or be not is of no consequence to this
case. The identity of the man as William H. Huntley is proved by
his passport and oral testimony, as also the fact that he is a citizen
of Georgia, and a soldier in the Confederate army. It is a very
strange fact, however, in connection with the charge of ‘* cookin.g-
up” the muster-rolls, that the parol evidence we put on record
when we despaired of getting these papers, exactly corresponds
with the facts on the face of those papers, although it was impos-
sible for the Secretary of State and President Davis, while “ cook-
ing them up,” to know what testimony was then being given in
Montreal. Strange to say, on the muster-roll of the 2nd Kentucky
Infantry, sent us from Richmond, but which we did not yet till
after the evidence of Withers had been taken, we find the name of
Charles M. Swager, in which company his fellow-soldiers swear he
was a private. If this statement is true, where was the necessity
for the paper being “ cooked-up”’ in Richmond? And how did
the Richmond cooks discover what had been sworn to, since Mr.
Cameron had left Canada long before Withers gave his evidence ?
And if the statement is false, then Adjutant-General Withers and
Dr. Pallen have sworn falsely, and by some miracle, news of their
false - shs reached Richmond in time to have the papers ‘* cooked
up,” to endorse their perjury. The same remarks, moreover, apply
to the case of Tevis. He is sworn to be in Chenault’s troop of
Kentucky cavalry, and the muster-roll shows he was. But we had
sufficient evidence before these muster-rolls came to hand, that the
prisoners were Confederate soldiers, and it is to be found in the
382
testimony of Allen (p. 200), Bettesworth (202), Wallace (201),
Stone (203), Withers (205), and Pallen (208). This testimony is
quite conclusive: yet the learned gentleman spent half an hour
in trying to show that the names of the men were “ cooked-up”’
on the muster-rolls, though those rolls and the parol evidence exactly
agree—and though he and his colleague have distinctly denied
any intention of disputing; and in fact could not dispute, the
veracity of our witnesses.
I would now ask your Honor to look at Young’s instructions,
and see what their real character was. I propose to examine this
affair from the moment of time Mr. Young proceeded to Richmond
and got his commission, upon the recommendation of Mr. Clay,
down to the time of the St. Albans raid. I propose to trace out
every particular of it, and to show by the evidence of record, step
by step, what was probably contemplated by the commission of
Young and his mission northward ; what he and his command were
authorized to do, and by whom and how they were so authorized.
The purpose for which Mr. Young was commissioned may be
gathered from two sources of evidence. Mr. Cleary tells us that
Mr. Young went to Richmond with a recommendation from Mr.
Clay for a comniission, “‘ for service within the enemy’s lines, that
is within the Northern States,” on their northern boundary, and
but for the objection of the Counsel for the prosecution, we should
have had full information on this subject. Major Wallace states
(p. 212) that he was in Richmond in September, and that it was
then notorious there that the war was to be carried into New Eng-
land, in the same way that the Northerners had done in Virginia.
We know that Young went to Richmond in May to get his
commission, for we find him in Halifax in that month, about to run
the blockade; we see that he was ordered on the 1th June to
‘“‘ proceed” to the British Provinces, which would not have been
the case if he had been in these Provinces at the time ; and we
find him at Toronto in July, “ on his return,” in possession of his
commission and of his instructions. If my learned friends had
taken thosc instructions in their natural order they would have
been more easily understood. The first in order is paper N (p. 80),
characterized by Capt. Withers as a detail for special service ; and
as the detailed instructions are not contained in it, it is called a detail
for secret service. ‘The second paper is the one which my learned
friends read last. It is the paper R (p. 216), which requires
Lieut. Young to proceed to the British Provinces, and report to
Messrs. Thompson and Clay for orders ; and the third letter, paper
O (p. 206), directs him to proceed “by the route indicated,”
that is by way of the British Provinces, and to report to C. C. Clay,
Jun., for orders, giving him also further directions as to his com-
(201),
nony 1s
n hour
ed-up”’
exactly
denied
ute, the
actions,
‘ine this
chmond
r. Clay,
race out
rd, step
ission of
nd were
orized.
may be
sus that
rom Mr.
nes, that
lary, and
ve should
ce states
at it was
few Eng-
Virginia.
get his
ut to run
June to
ave been
; and we
on of his
ends had
uld have
(p. 80),
ice ; and
d a detail
y learned
requires
report to
er, paper
Aigated,”
C. Clay,
his com-
cir
383
mand, and as to their organization, management, and maintenance.
These instructions appear to me fully to sustain the opinion that
Lieut. Young and his party were to operate against the northern
frontier of the Northern States. I am speaking of this entirely
irrespective of the question whether the Confederate Secretary of
War was justified in sending the prisoners here, or in giving Mr.
Young those orders; or whether in obeying them Lieut. Young
committed a breach of our neutrality. I am considering what
really was the intent and meaning of the orders issued to him,
and I contend that his commission was actually given to him for
the express purpose I have indicated, by his own government ;
that the instructions given him in writing clearly point to that
purpose ; and that in what he did he was merely carrying out that
purpose. ‘The instructions produced direct him to proceed hither
and to report to Mr. Clay ; to raise a party of twenty men, similar
to those Capt. Withers describes as being known in the Confederate
service as partizan rangers, or small bodies of men acting inde-
pendently. This party was to be organized within the cnemy’s
territory from among escaped soldiers ; they were to be furnished
with transportation, &c., by Mr. Clay; to undertake such enter-
prises as should be entrusted to them; and to obey implicitly his
orders. As Mr. Clay then resided near the border, the inference
as to the nature of these enterprises seems plain. It could not
have been in Canada that these enterprises were to take effect, for
they could gain nothing by imitating Federal agents in kidnapping
people for their armies. The only intelligible object in sending
Mr. Young here, and in authorizing him to raise a party of this des-
cription, was to enable him to assail in some way the enemies of his
country on their northern frontier. There can be no doubt the
intention was to attack their towns; but whether this was to be
done in one way or in another does not appear from the evidence.
Whether it was intended that they should wage a guerilla warfare,
maintaining a precarious existence within the enemy’s borders, or
whether they actually contemplated the use of our territory, can-
not be ascertained from the testimony of record: though the order
to organize in the territory of the enemy would seem to indicate
the former course. Nor does it in fact appear whether the greater
portion of Lieut. Young’s command passed from Chicago to St.
Albans through Canada, or through the Northern States, as only four
of the number are proved to have passed through Canada. How the
other seventeen reached St. Albans, is not shewn nor does it in any
way appear. But I am not at this moment dealing with the question,
how the matter stands between the Confederate States and the
British government; nor whether the former has or has not given
the latter reason to demand satisfaction for violating its territory.
384
If it should become necessary, I believe I can show that these ques-
tions must be answered favorably to the prisoners. I am not argu-
ing that Mr. Clay did or did not render himself liable to be sent out
of this country for having carried out the instructions of his Govern-
ment. I repeat that I wish to arrive at a clear understanding of
the facts before I attempt to deal with their consequences.
For these purposes then Mr. Young is required by his instructions
to organise a party ‘within the territory of the enemy”’; the party to
be of twenty men, ‘‘ escaped soldiers ”’ as they are described in one
place, and persons “in the Confederate service beyond the Con-
federate. lines,’’ as they are characterised in another. So far then
I have established the appointment and recognition of Young as an
officer in the Confederate army ; his instructions to proceed from
Richmond to the British Provinces and to report to Mr. Clay; his
authority to raise twenty men from among escaped prisoners or
from among persons beyond the Confederate lines belonging to the
Confederate army ; his directions to organize in the territory of the
enemy ; and to operate within the enemy’s lines.
Did he obey these instructions ? A short review of the evidence
will answer that question.
Mr. Cleary declares that he did report himself as directed when
he returned from Richmond in July, immediately after having re-
ceived his commission at Richmond upon Mr. Clay’s recommen-
dation.
Mr. Bethune.—Does anybody prove he ever was in Richmond ?
Mr. Abbott.—Not from having actually seen him in Richmond.
Butit was proved that he was in Toronto early in the spring of 1864,
when he was recommended by Mr. Clay for a commission ; that he
left Toronto in the spring with the declared intention of proceeding
to Richmond ; that he was in Halifax in May on his way to Richmond ;
by running the blockade ; that his instructions in Richmond in June
required him to ‘ proceed” to the British Provinces ; and his re-
turn to Toronto in July with his commission and instructions is
spoken of by Cleary and by other witnesses. ‘These facts are suf-
ficient to prove a side issue of this kind ; and the only evidence to
the contrary is that Young attended lectures in Toronto in the fall
and winter of 1863.
Mr. Bethune.—And in 1864 was living in Toronto.
Mr. Abbott.—In July 1864 he passed through Toronto, report-
ing himself to Mr. ‘Thompson according to his instructions. Mr.
Cleary’s testimony fully explains all that. But it is also proved
that before the raid was planned, he was actually in Chicago, in the
capacity of a Confederate soldier, combining with his brother sol-
diers and their friends and allies there for the purpose of breaking
into Camp Douglas, and of releasing the prisoners there confined.
scales AL Seka na atm
4
=
4
ques-
s argu-
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arty to
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ie Con-
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in June
his re-
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i
385
This was in August and the beginning of September last, within
little more than a month of the attack on St. Albans. Yet the
Counsel opposite pretend that Mr. Young had acquired a domicile
in Canada; that he was here, as Mr. Carter says, animo
manendi ; that he had in fact lost his national character ; and was
a British subject for the time. Yes, they say this, although this
man is proved to be a Confederate subject, actually serving within
a few weeks of the raid, asa soldier of the Confederate States ;
and then actually engaged within the enemy’s lines, in an attempt
to break into an enemy’s fortress, to release his fellow-soldiers.
To assert that a man who takes refuge in this country as an
escaped prisoner of war; who first raised the Secession flag in his
native Kentucky ; who has been a soldier of the South since the
breaking out of the war; who is promoted from a private to a
Lieutenant, after escaping from the enemy—who goes back to the
territory of that enemy to engage in a most dangerous service ;_ pre-
pared to peril his life to release his fellow-soldiers from duress ;
and not only to risk his life—but to expose himself to the most degra-
ding of deaths; at Richmond, in June, receiving his commission
and his instructions from his Government, at Chicago, in September ;
at St. Albans in October; was ‘‘ domiciled in Canada:”’ that this
‘¢ domicile” was the ‘ test of his national character ;’’ and that he
became incapable of legal hostility against the Federal States—is
to assert propositions of law and of fact that are neither sustained by
the authorities nor the evidence ; and that are revolting to common
sense and to common justice. In fact they are propositions about
equidistant from the law, and from the evidence. ‘They are as
little sustained by the one as by the other.
To return to the evidence atthe point at which my learned friend
interrupted me, I say that Mr. Cleary; who is an employé of the
Department of State at Richmond, acting as Secretary to Col.
Thompson at Toronto, proves that Young reported himself there,
exhibited his commission, and made known his instructions, (pp. 210,
211, 216),—and that he left afterwards to report to Mr. Clay.
(Cleary, p. 211.)
Mr. Young did, then, follow his instructions to proceed to the
British Provinces and report to those gentlemen, and shortly after-
wards we find him at Chicago, where he remained during the Con-
vention held there. The object of the rendezvous of the Confede-
rate soldiers at Chicago, is described by Bettesworth and Stone,
and they give us details of the proceedings of Lieut. Young in pre-
paration for the attack of St. Albans. We all know the enterprise
contemplated was not carried out; the Federals got wind of the
affair; the guards at Camp Douglas were doubled, and other cir-
cumstances intervened to prevent the attack. But this was the
Z
386
time and place at which the raid on St. Albans originated. The
enterprise then planned is described and proved by Bettesworth
and Stone.
Mr. Bettesworth is the person who was arrested without a war-
rant, on a charge against him at Quebec, on suspicion of being one
of the discharged prisoners. After proof had been made
before Mr. Maguire that he was not one of them, he was transmitted
in custody to Montreal, where he arrived on Friday morning, and
was consigned to the gaol—still without a shadow of a charge
against him, and retained there among common malefactors, till the
following ‘Tuesday, when the Counsel for the prosecution, stating
that they had no charge against him, called him out of the dock
into the witness box. ‘They doubtless hoped that his intimate rela-
tion with the prisoners during eight days of incarceration, had led
to confidences which they could force him to disclose; and the
idea was certainly ingenious—if not remarkable for its delicacy or
humanity. On cross-examination Mr. Bettesworth tells us (p. 188)
that during the convertion at Chicago in August last, there was an
organization going on there for the release of the Confederate
prisoners at Camp Douglas, in which Young and Spurr took part.
ife was aware that a raid was being then organised there for the
purpose of plundering and burning the Northern towns on the
trontier—and that Young and Spurr were engaged in that organi-
zation. And when afterwards examined for the defence (p. 201),
he proves that the fact of Young having a commission, and of his
collecting a party with the authority of the Confederate Government
for a raid on some point of the Northern States, which he was to lead,
was then perfectly well known among the Confederates in Chicago.
He further proves that arms and material of war were stored in
Chicago for such purposes, and that these raids were intended to
serve the Confederate Government, and not any private object.
Mr. Stone (p. 208) is still more explicit. He was also with the
party at Chicago, and he was aware there of the organization and
of the whole plan of operations. He was applied to, there, to join
Young’s party, by Young himself. He knew that Young was to be
the commander ot it ; he was shown the instructions to raise it ; he
was aware that.when it was collected, a report wasto be made to
Mr. Commissioner Clay, whose instructions were to be their guide.
And finally he knew that the requisite men had been obtained, and
that St. Albans was the point aimed at.
This is actually all the evidence of record, with reference to the
place where this expedition was organized ; and I would like now to
be informed where my learned friends opposite find the proof of
what they one and all assert with such vehemence, that this
St. Albans raid was organized in Canada. Where is there in the
The
orth
war-
¥ one
made
ritted
, and
harge
ill the
tating
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eo rela-
ad led
nd the
sacy Or
», 138)
was an
ederate
yk part.
for the
on the
; organi-
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d of his
ernment
to lead,
Shicago.
stored in
nded to
ject.
with the
tion and
, to join
x ‘a8 to be
ke it; he
made Ag
r guide.
a and
e to the
now to
proof of
hat this
re in the
387
deposition; in this case, a scintilla of evidence—anything even
from which any inference can be drawn—that a single man of this
expedition was engaged in Canada; that the party was organized in
Canada, or that ‘anything in regard to the matter was done in
Canada, beyond Mr. Young’s communicatin with Mr. Clay. Mr.
Johnson asserted in his speech lately, that this expedition was
‘‘authorised in Canada, proceeded from Canada, and returned
to Canada.”’ I venture to say the whole tenor of his argument was
to that effect ; and the substance of the whole of the arguments of
the learned gentlemen opposite, but especially that of Mr. Devlin’s
speech, was, that this expedition was organized in Canada.
Mr. Bethune.—I said so, and repeat it.
Mr, Abbott.—Then I ask my learned friend upon what evidence
he made, or now repeats that assertion ? What is the organization
of an expedition of this kind? Does it consist in the issue of the
commission of the commander? If it docs, this was organized
in Richmond. Does it consist in the instructions to raise a party
for the purpose of entering upon it? If so, this again took place
in Richmond. Or does it consist in the arr: wngement of the plan,
and in the engagement of the men to carry it out? But this
all took place in Chicago. And this in fact is really what is under-
stood by the organization of such a. expedition. ‘The evidence on
this point is in the most positive terms language is capable of ; and
so far as the evidence of record goes, we have nothing to shew that
Young and his men ever met again, till they reached the rendez-
vous at St. Albans. The party was composed of ‘ Confederate
soldiers who had escaped from the enemy,” (papers O and R,)
it was “ organized within the territory of the enemy,” (paper Q,)
as Stone has said “ for an expedition against the town of St. Albans,”’
and, as is sworn by Bettesworth, for an attack on some part of the
Northern frontier of the United States. They perfectly agree ;
Bettesworth did not know the precise point of attack as settled in
Chicago, but Stone did. Was that organization or was it not?
Tf that be organization, and I contend it is, if the word means any-
thing at all; “all that is comprehended in it, was done in Chicago.
Mr. Devlin.—Do you argue that before Youhg received instruc-
tions from Mr. Clay, it was competent for him under his previous
instructions, to organize a party to attack St. Albans ?
Mr. Abbott.—Certainly.
Mr. Carter.—Will you state where Young, was when he sug-
gested to Mr. Clay the raid on St. Albans ?
Mr. Abbott. — Whether Mr. Young had any precise instructions
from Mr. Clay or Secretary Seddon “before he organized his party
we do not know. ‘The evidence is that Mr. Young was sent here
under circumstances and with instructions which indicated an
388
intention to attack the Northern frontier of the Federals ; but we
do not know the precise nature of his private instructions, being
aware only that he was to report to Mr. Clay, and take details
from him. ‘The well defined nature of Young’s intentions when in
Uhicago, lead to the inference that he knew what he had to do,
either from Mr. Clay or Mr. Seddon,—but whether he did or not,
he had a perfect right to exercise his judgment in selecting his
point of attack, so long as he was careful to get that selection
approved by the proper official before he acted on it. He knew
that the intention was to attempt to carry the same kind of warfare
into the Northern towns which was practised in the Southern cities
by Northern troops. And the expedition to St. Albans was sug-
gested and planned by Mr. Young himself, and Mr. Clay, under
the authority given him by his Government, approved of it, and
required it to be carried out. The direct written authority for this
particular act received from Mr. Clay is to be found at page 209
of the printed evidence, being paper marked P.
It is as follows:
“ Mem. for Lieut. BENNET Youna, C. S. A.”
“‘ Your report of your doings under your instructions of 16th June
‘¢ last, from the Secretary of War, covering the list of twenty
‘“¢ Confederate soldiers who are escaped prisoners, collected and
‘¢ enrolled by you under those instructions, is received.
‘“« Your suggestion for a raid upon accessible towns in Vermont,
‘“¢ commencing with St. Albans, is approved, and you are authorised
‘“¢ and required to act in conformity with that suggestion.
‘*¢ October 6th, 1864.
“©, C. CLAY, JUN.
6 Ocimianioner CG, Ss. A.”
The evidence of Dr. Pallen (p. 209) and of Mr. Cleary (pp.
210 and 211) prove the genuineness of this paper, and if more
were wanted, there are numerous circumstances confirmative of it
in every respect. Mr. Cleary (loc. cit.) was informed by Mr.
Clay himself a short time after the raid occurred, that he had
authorised it, and that his authority was in writing. Mr. Lewis
Saunders (p. 217) was present at conversations between Mr. Clay
and Lieut. Young after the return of the latter from Chicago, in
which the burning and pillage of St. Albans were discussed ; and he
knows that Mr. Clay advanced Lieut. Young $400 for the expenses,
as the instructions authorised him to do.
Your Honor will perceive how perfectly consistent all this evidence
is with itself,—Mr. Young reports his doings and his list of twenty
men, enrolled at Chicago; and he makes his suggestions for the
raid on St. Albans. All of which is in exact accordance with the
é
t we
eing
tails
en in
» do,
r not,
g his
action
knew
arfare
cities
3 sug-
under
it, and
‘or this
ce 209
th June:
twenty
ted and
ermont,
thorised
? Ae’
bry (pp:
if more
ive of it
by Mr.
he had
r. Lewis
fy. Clay
cago, in
> and he
xpenses,
vidence
f twenty
for the
ith the
porns
389
proof as to the proceedings at Chicago. And all this is in con-
formity with his instructions from Mr. Seddon.
Mr. Clay says, Your report and muster-roll are received with
your suggestion, and you are authorised and required to act in
accordance with that suggestion; and he furnishes the means of
transportation, &c., accordingly. And all this is consistent with
the functions of Mr. Clay as indicated by the instructions from
Mr. Seddon,
Paper P is, no doubt, a formidable document, and my learned
friends feel they must use some extraordinary means to get rid of
it. For my part, I cannot say that I consider it essential, for I
should be perfectly prepared, if this paper were not here, to show
by authority that could not be disputed, that, under the commission
held by Mr. Young, he had a perfect right to sack and burn St.
Albans. But Iam saved that trouble, being able to produce the
specific authority given to the commander of this party by the
diplomatic agent of his Government, under the authority conveyed
to him by that Government, in the instructions he held and has
proved before your Honor. My learned fricnds treat this paper
very characteristically. Mr. Devlin volleys forth voluminous
enquiries about the gentleman who signed 1:. He demands in
indignant tones where C. C. Clay is? and, attracted apparently by
the alliteration, he continues, Where does C. C. Clay, junior, come
from? ‘ Where does C. C. Clay, junior, reside?’ ‘ Where did
C. C. Clay, junior, go to?” “ Why did C. C. Clay, junior, go
away ?’’ “ Where did C. C. Clay, junior, get his authority ?” and
so on through all the letters of the alphabet. But, lastly, and it is
a question in which the learned gentleman takes a peculiar interest ;
he asks “ What did C. C. Clay, junior, do with the money ?”” Mr.
Bethune takes a different course. He says this letter or commis-
sion is a letter of marque, and that no power under heaven can issue
letters of marque in a neutral country. And he says the date of
the document is not proved, for actes sous seing privé have no date.
Now, I dispute both his propositions. I say it is not a letter of
marque, and moreover I say that letters of marque may be and
have been issued in a neutral country. I do not say that those
letters of marque were legally issued guoad the neutral, but I say
that their validity could not be disputed by the belligerent against
whom they were directed; and that the parties who sailed and
acted under them could not be heldto be pirates. It is a well known
historical fact that Genet, an ambassador of France to the United
States, issued at Washington numerous letters of marque and reprisal,
even before he presented his letters of credence; and what was the
consequence? Were the holders of them declared to be pirates ?
Not atall. Genet was ordered to leave the country, which he did ;
\
390
but no one ever pretended that because he was temporarily residing
in the United States when he issued them, they were such an abso-
lute nullity that those acting under them were pirates. But the
document in this case is in reality no letter of marque, and bears
no analogy to such a letter.
Mr. Bethune.—Will my learned friend point out any case in
which Genet’s privateers were declared not to be pirates ?
Mr. Abbott.—I state that Genet did exercise that authority as
representing the French Government, and that he was sent out of
the United States because he did so; and I say further that no
person who acted under those letters of marque was ever charged
with or convicted of piracy.
Mr. Johnson.—That means that no English vessel ever caught
one of those pirates and took him prisoner.
Mr. Abbott—What I state is a simple fact, that instead of
Genet being extradited, he was merely ordered out of the country ;
and I say further, that while historians and writers on international
law have discussed the conduct of Mr. Genet, and declared it to
be illegal, no dictum is to be found in any of them to the effect
that acting under those letters of marque, destroyed, in priva-
teers holding them, the character of belligerency. Now with
regard to the date of the document, I refer the Court to the case
of Hayes against David, where this doctrine of an acte sous seiny
privé, having no date, is discussed and settled. ‘The Court of
Appeals, in that case, took the view that in the absence of proof of
fraud, the presumption was that the date of document was correct.
But this being a criminal matter, English laws must be referred to;
and if your Honor requires authority from that law to show that
the presumption is that all documents were made on the day they
bear date (1 Taylor, p. 153), I can produce it. (His Honor was
understood to dispense with any further authority on this point.)
Mr. Johnson, in his turn, gives us his particular view of paper
P ; and it consists in a vehement burst of indignant declamation at
the usurpation by Mr. Clay of the functions of our most gracious
Sovereign !
So far as the genuineness of the paper is concerned, however,
we are not left to mere presumption: we can trace it back to the
period of the raid itself; for Mr. Cleary swears that immediately
after it occurred, Mr. Clay informed him that he had authorized
it in writing ; and that the authority was in my hands.
Mr. Bethune.—Do you call that evidence ?
Mr. Abbott.-—I say it is perfectly good evidence. I say that no
better evidence could be produced touching the antiquity of a
paper, than that at the time of its date the alleged writer of it
described it to a third party, and stated where it was to be found ;
SS edie PUM ERE
iding
abso-
it the
bears
se in
rity as
out of
hat no
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ed it to
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ourt of
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ay they
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pf paper
ation at
gracious
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e found ;
SEMEN Se eae
391
and that it was found, and answered the description given of it by
its author. When Mr. Cleary came to Montreal, two or three
months ago, having been told—as he was by Mr. Clay himself—
that this written authority existed, he asked for it, and found it to
correspond with the description he had received of it. What be-
comes, then, of the suspicion attempted to be cast on this docu-
ment ? If my learned friends had adduced any evidence, however
slight, tending to show that this paper was antedated, there would
have been some reason for their objection; but in the absence of
conflicting testimony, the circumstances seem to me to be conclu-
sive in favor of the document, independent of the presumption
which arises from the purport of the document itself. My learned
friends opposite, however, have laid a great deal of weight upon a
part of the evidence of Mr. George N. Sanders, notwithstanding
their disclaimer of any imputation upon the veracity of our wit-
nesses. But his deposition is cither to be taken as it is, or not at
all. Speaking in relation to one sentence in his deposition, they
say he is a gentleman incapable of saying anything incorrect ; but
in relation to the next, they say, or intimate, that he has been
swearing what is not true.
Mr. Devlin denied he had ever said so. On the contrary, he
had him under examination on two occasions, and he had never met
with a more truthful witness.
Mr. Abbott.—Mr. Devlin will recollect that he said, that when
Mr. Sanders had his attention called to the fact, that he was
saying something about paper P, damaging to the prisoners ; he
endeavored to remove the impression by stating that the document
he referred to was not paper P, though previously he had evidently
been referring to it.
Mr. Devlin.—It was you who threw doubt on Mr. Sanders’
word, not I.
Mr, Abbott.—Then you admit that his testimony is true ?
Mr. Devlin.—Yes.
Mr. Abbott.—Very well. Mr. Sanders says in his examination,
(p. 213) that Mr. Clay told him, a few days before he left, that
he would leave such a letter as paper P, which he (Mr. Sanders)
inferred had not been written up to that time. * * * But he says
afterwards, upon being asked to look at paper P, and at the date espe-
cially, ‘‘ I say the conversation I had with Mr. Clay had no refer-
ence to this paper.”’ If the learned gentlemen opposite admit that
Mr. Sanders stated the truth in his deposition, we take it as it is,
and thus dispose of any objection arising from it against this paper.
But if they say that this (Mr. Sander’s) conversation with Mr. Clay
did refer to this paper, they virtually charge Mr. Sanders with
swearing falsely, which they disclaim most emphatically. But, in
reality, no part of Mr. Sanders’ testimony impeaches this paper.
He states that Mr. Clay was to “ write a letter, assuming all the
responsibility of the St. Albans raid.”” Now, you will perceive
this is not a letter at all, nor docs it purport to assume the respon-
sibility of the St. Albans raid. It is simply a formal official memo-
randum, containing authority to act—not recognition or assumption
of an act previously done. It does not correspond with the de-
scription given by Mr. Sanders, of what Mr. Clay intended to
write. But Mr. Clay did in fact write such a letter; and if my
learned friends will call at my office, I will show them the letter
which Mr. Clay wrote, assuming the responsibility of the St.
Albans raid.
Mr. Devlin.—Why did you not produce and prove it ?
Mr. Abbott.—Simply because a letter writen in December,
assuming the responsibility of this raid, would be of no legal value.
If I had produced this writing, I should have been subjected to a
more extensive volley of questions than was actually discharged at
me by my learned friend, Mr. Devlin; for he would have been
entitled to demand with more reason, and, doubtless, with a corre-
sponding increase of vehemence, ‘* Who gave C. C. Clay, jun.,
power to ratify in December the raid of October 19th ?”
This reminds me that my learned friend is anxicus to know some-
thing about Mr. Clay. Now the evidence of record answers all of
my friend’s questions, that are material to this investigation. It
proves that Mr. Clay was Senator for Alabama in the Confederate
Senate, and was accredited here by the Confederate Government
in the spring of 1864, as a diplomatic agent; not an ambassador
recognized by our Government, because we do not yet recognize
the Confederate States as an independent established sovereignty,
and therefore do not receive ambassadors from her; but a diplo-
matic agent, such as the Confederate States and all states have a
right to send to any country, and to entrust with such functions as
they may deem suitable.
Mr. Bethune.—What is the evidence as to his powers ?
Mr. Abbott.—I have the misfortune not to hold a copy of Mr.
Clay’s commission, but I have in my hand evidence both verbal
and written of the de facto possession and exercise by him of the
powers and duties of a diplomatic agent in this country; and I
have in writing the order of the Department of War of the Confe-
derate States to Lieut. Young, to obey such orders as Mr. Clay
might give him, which necéssarily implies authority in Mr. Clay to
give such instructions to Lieut. Young as he may think proper.
I have read the instructions (paper O, p. 206) given to Young,
by which he is directed, in the clearest manner, to report to
Mr. Clay in Canada, and to take his instructions from Mr. Clay
a me esr:
EERE STEP REO FS a ee ea geet rere
aper.
} the
rceive
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ic St.
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ed to a
rged at
e been
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assador
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oung,
port to
. Clay
De ——————
393
as to what he was to do with his party when he had raised it, and
as to the enterprises he was to undertake in the performance of his
duty in command of that party ; and he was directed ‘ implicitly
to obey those instructions.”
I would like to know, with respect to the operations of Mr.
Young, what further authority to Mr. Clay was required, as
between the Confederate Government and Mr. Young, than is
contained in this paper. I would like to know, from any analogy
to any law, still more from the direct authority of any law or pre-
cedent, in what respect this evidence of authority in Mr. Clay to
give instructions to Mr. Young is defective. My learned friends
pretend that it is. I ask then, in what respect and for what
reason? ‘The test of the authority of an agent is the binding
effect of his acts upon his principal. In this case a written paper
is issued from the Confederate States War Department, addressed
to Mr. Young as an officer of the Confederate States army, direet-
ing him to report to a person, proved, by four witnesses, to be
acting in the capacity of diplomatic agent of the Confederate
States, and directing him to obey implicitly that agent’s orders.
The agent gives orders, and they are acted upon; and there can
be no doubt but that the Confederate Government is responsible
for them. Such evidence would be conclusive against the Confe-
derates, if our Government turned upon them, and made Mr. Clay’s
giving orders to Mr. Young in Canada, a subject of complaint.
Those States could not eseape from their liability to give us satis-
faction (if those orders were really just cause of complaint) by
saying that although they had ordered Lieut. Young to go to Mr.
Clay to receive instructions from him, and to obey them implicitly ;
yet that they had not ordered Mr. Clay to give him those instruc-
tions. :
But in further reply to the enquiry who Mr. Clay is, we
have the evidence of several witnesses. Adjt. Genl. Withers (p.
206) says he was Senator for Alabama; Dr. Pallen (p. 209)
knows that he was a Commissioner of the Confederate States of
America ; Mr. Cleary (pp. 210-11) knows him, and says he was
an officer of the Confederate Government , that he was appointed
by that Government a Commissioner abroad,—and that that was
position in this country. ‘I am personally aware of that fact,”
says Mr. Cleary. And at p. 212 he adds, ‘ the said My. Clay
‘was both a civil and military officer. He made his reports to the
‘“ State Department, which was the civil department of the State ;
“but he had ample powers both civil and military: but he had no
‘rank in the army.’’ And Mr. George N. Sanders informs us (p.
213) that Mr. Clay ‘“ was then exercising the authority of a Con-
*‘ federate agent, claiming full ambassadorial powers, as well civil
“Cag military.”’
394
With such information as this before him, I think that my learned
friend, Mr. Devlin, might have spared us the reiteration of his first
question. Or, if he felt it essential to the interest of his clients,
or to the contour of his periods, that he should ask it so often, or
ask it all; that he might have answered it also.
The other questions respecting Mr. Clay may be as easily and
more shortly answered. Ile came down to Montreal at the time of
the trial before Mr. Coursol, to vive his evidence, if necessary, on
behalf of the prisoners, and ‘he a in ee till they were
discharged. And he was heard from, by Mr. Cleary, at Halifax,
in the end of December last. T regret that [I cannot further
gratify my learned fricnd’s curiosity ; and that I am unable to give
hii any further information about Mr. Clay, nor, in fact, about
cither * that money,” or the famous carpet bag, which was sup-
posed to contain it.
I think therefore, that without fear of contradiction, T may
safely assert, that we have proved that Licut. Young did receive
instructions from Mr. Clay, as Confederate Commissioner, both
verbally and in writing, to make the attack upon St. Albans ; and
also received from him funds for the expenses of the expedition.
With reference to the attack itself, your Honor will recollect that
the only trace we have of the party from the time it was organized
in Chicazo, and arrangements made to attack St. Albans, is the
appearance of Young at Mr. Clay’s house at St. Catherines, when
he reported himself and party ; and on the train from ‘Toronto; and
that of himself and three others of the party at St. Johns, in the
beginning of October. ‘That is the only evidence to support the
often repeated assertion that this party of twenty-one were organized
in Canada, and proceeded from Canada. Where is the proof that
the other seventeen proceeded from Canada? And if there be no
proof of it,—and I assert there is none,—by what right is it that my
learned friends reiterate it so persistently ¢ In fact this is all we
hear of the expedition till we learn from Mr. Bishop and the other
St. Albans witnesses, of their having taken possession of the town.
As to the attack upon St. Albans, the facts seem to be simply these:
The party appears to have met at St. Albans at a preconcerted
time. In the middle of the afternoon they took possession of the
town at several points, at which they placed pickets ; they seized
upon several of the leading citizens whom they placed under guard
in the principal square ; they set fire to the town in several places ; ;
seized upon three of the banks, and pillaged them; and, while so en-
gaged, took from Breck a bundle of notes, which he brought into one
of them in his hand. All these acts, from beginning to end, they
declared themselves to be doing as Confederate soldiers, in retaliation
for outrages committed by Northern soldiers in the Confederate
States.
oe mpeg
learned
f his first
; clients,
often, or
asily and
e time of
ssary, on
ey were
Halifax,
t further
le to give
ict, about
was sup-
n, I may
d receive
ner, both
ans; and
xpedition.
leet that
organized
ins, is the
nes, when
‘onto; and
ins, in the
pport the
organized
roof that
vere be no
it that my
3 is all we
the other
the town.
iply these :
concerted
ion of the
iey seized
der guard
al places ;
hile so en-
it into one
end, they
retaliation
onfederate
395
Mr. Bethune.—Did they take »way any prisoners ¢
Mr. Abbott.—No, they did not, They took possession of the
town, pillaged, and, as far as they were able, set fire to it. If they
could have done so, they would, dou!tless, have burnt the whole of
it. They did as much mischief as they could, till driven out by the
citizens. My learned friends ar difficult to please. They have
favored us with glowing denunciations of the outrages committed
by the raiders ; yet they now seem to complain that the dignitaries
of St. Albans were not bundled upon bare-backed horses, and hur-
ried into Canada. If they had been, we should have had outeries
from them, which would, if possible, have surpassed in vehemence
those of my learned friends; and Ihave no doubt their feelings
would have been at least as acute. But say that a town of 3,000
or 4,000 inhabitants, twenty miles within the lines of a hostile fron-
tier, offers many difficulties to its capture by twenty men; and that
it is not surprising that, having held this town half an hour ; having
done their best to burn it and injure its institutions, they should be
driven from it by the citizens. Nor is it astonishing that one man
was killed in the skirmish. And this is the horrible murder—the
frightful slaughter—that my learned friends on the opposite side
talk so much about. And I presume that it was with reference to
this that they cited their authorities from Vattel and Halleck, to
prove that assassination was not recognized as being lawful, under
the law of nations! They deny that the prisoners were fired at.
The facts are stated by a witness we brought here (p. 215) ; and
he has since been arrested and put on his trial for treason, for
so stating truthfully in evidence; who tells us that he followed
them along the street for a quarter of a mile, firmg a revolving
rifle at them as fast as he could, and that other citizens did like-
wise. We have also proof of numerous shots being fired and
reports heard; and from the description of the whole scene, even
by witnesses determined to say as little as they could, and from
what we know must have occurred under such circumstances, it is
plain that the citizens rose in every direction, and that the little
party was driven from the town by overwhelming numbers. And it
was in the midst of this confused street skirmish that Morison was
shot. If we had been in a position to give evidence of the fact, we
could have proved that the prisoners were driven out of the town,
with three men wounded, one of whom languished for weeks in
Montreal under surgical treatment, and we know that the casualties
on the Federal side consisted of one man killed, and one man
wounded ; both in the street, in the exchange of shots between the
hostile parties. This, I repeat, is the horrible murder, and the
nefarious robbery and pillage on which my learned friends opposite
have expressed themselves so forcibly, and which they have
396
denounced as something perfectly unprecedented in atrocity.
What! they say, burning and pillaging an undefended town and
unresisting citizens, a hostile act! Such a doctrine was never
heard of! None but Southern felons and rebels could possibly
be guilty of such; and from crimes like these, offences against
the laws of nature and of nations, the enlightened and humane
principles of international law, now observed by all civilized nations,
withdraw the shield! This, we are told, is not a raid. Pillaging
banks, and setting fire to the town, are acts which are not covered
by instructions to make a raid! I do not know what kind of harm-
less military evolution is conveyed by the term “ raid”’ to the minds
of my learned friends; but it is plain that they require enlighten-
ment on this point, and I will undertake the task of instructing them.
IT will read to them from a Federal book a description of a Federal
raid. <A raid, which my learned friend Mr. Bethune, I presume,
will consider an act of war, and, perhaps, even an act of war per se
—a kind of act of war of which we have heard a great deal both
from him and Mr. Johnson. No doubt the last named gentleman
will be pained, yet amused, at the “ ludicrous extravagance of the
pretence,” that in going to a peaceable village in the middle of the
day,” and “ easing ”’ the old ladies of their chairs and tables, their
cooking utensils and their bedroom furniture, the persons of whom
I am about to speak “ can be presumed or believed to have acted as
‘* a military foree—having lawful authority from a brave and civi-
** lized people for what they did.’ Those notions of “ warlike
achievements and martial glory,” which he has formed, will receive
another shock, when he learns how the Federals, whom he doubtless
believes to be models of modern belligerents, carry on warfare.
Unless, indeed, he adopts the doctrine of Counsellor Sowles, (page
145), who being examined professionally for the prosecution, gives
his opinion as a counsellor-at-law, that the act charged against the
prisoners, if done in Georgia by Federal soldiers, under a Federal
officer, would not constitute robbery—because, he says, Georgia is
a State in rebellion against the United States, and Vermont is not.
Indeed, the adoption of this view of the law by the Counsel for the
Crown, would not be more remarkable than the mode in which
‘“‘watching the case for the Crown,” is exemplified by their
speeches.
But I must proceed with the description of what a “ raid” is,
as practiced by my learned friends’ clients. I shall read from No.
42 of the Rebellion Record, a New York publication, of respectable
character, which I perceive was frequently referred to for information
in New York, on the trial of the crew of the Savannah. The ex-
pedition I speak of was commanded by Mr. Montgomery, a Federal
officer, who is said to have proceeded up the Altamaha river to the
atrocity.
pwn and
is never
possibly
against
humane
nations,
Pillaging
covered
of harm-
he minds
nlighten-
ng them.
. Federal
presume,
ar per se
leal both
entleman
ce of the
lle of the
les, their
of whom
2 acted as
and civi-
‘“¢ warlike
ll receive
doubtless
warfare.
8, (page
on, gives
rainst the
) Federal
eorgia 18
ntis not.
1 for the
in which
by their
aid” 1s,
‘rom No.
spectable
ormation
The ex-
Federal
er to the
397
village of Darien, on the 11th June, 1863, with a party of negro
soldiers ‘‘ to present his compliments to the rebels of Georgia.”
No motive is stated to have existed for this raid, nor does any
order appear to have been given for it by any officer of rank.
Darien was a town of about two thousand inhabitants; and as
Montgomery approached it in an old East Boston ferry-boat, pro-
moted to the rank of a gun-boat, he threw shells into it which
drove the inhabitants “ frightened and terror-stricken in every
direction.”” Not an armed person appeared to dispute his landing
or offer any resistance.
“‘ Pickets were sent out to the limits of the town. Orders were
‘¢ then given to search the town, take what could be found of value
“to the vessels, and then fire it. Officers then started off in every
*¢ direction, with squads of men, to assist. In a very short time
‘‘ every house was broken into, and the work of pillage and selec-
‘tion was begun. * * * * Soon the men began to come in
“in twos, threes, and dozens, loaded with every species, and all
‘sorts and quantities of furniture, stores, trinkets, ete., ete., till
‘¢ one would be tired enumerating. We had sofas, tables, pianos,
‘¢ chairs, mirrors, carpets, beds, bedsteads, carpenters’ tools, coopers’
““ tools, books, law books, account books in unlimited supply, china
‘¢ sets, tinware, earthenware, Confederate shin plasters, old letters,
‘* papers, etc., etc., etc. A private would come along with a slate,
‘¢ yard stick, and a brace of chickens in one hand, a table on his
‘head, and in the other hand a rope with a cow attached. * * *
“* Droves of sheep and cows were driven in and put aboard. * * *
‘Darien contained from seventy-five to one hundred houses—not
“counting slave cabins, of which there were several to every
“house, the number varying evidently according to the wealth of
*‘ the proprietor. One fine broad street ran along the river, the
*‘ rest starting out from it. All of them were shaded on both sides,
*‘ not with young saplings, but good sturdy oaks and mulberries,
“that told of a town of both age and respectability. It was a
* beautiful town ; and never did it look both so grand and beauti-
‘ful as in its destruction. As soon as a house was ransacked, the
‘“‘ match was applied, and by six o’clock the whole town was in one
“sheet of flame. * * * ‘The South must be conquered inch by
“inch; and what we can’t put a force in to hold, ought to be
“destroyed. If we must burn the South out, so be it. * * *
‘“¢ We reached camp next day, Friday, about three p.m. The next
‘¢ morning the plunder was divided, and now it is scattered all over
‘“‘ camp, but put to good use the whole of it. Some of the quarters
*‘ really look princely, with their sofas, divans, pianos, etc.”
This was a raid! and what is more, it was a Federal raid! and
what is more still, it was described in detail to the Federal people
398
with pride and exultation, as a “bold, rapid, and successful expe-
dition.”” ‘To an impartial eye it certainly does not present many
of the features of boldness—nor would it seem to possess those
characteristics of ‘warlike achievements and martial glory”
of which my learned friend has spoken, and which according to the
tenor of his argument would have to be present in every hostile
act, to save the belligerent from the punishment of a felon. The
whole affair seems to have been the idea of an officer in command
of a regiment; and his “ programme ”’ is coolly stated to be to
carry off all he could, and burn and destroy the remainder. He
takes with him a small vessel for the purpose of carrying away the
spoil. Ie enters a peaceful village from which most of the inha-
bitants have fled, and where he met “with no resistance ; he sacks every
house, carries off everything worth having, and burns and utterly
destroys every building in it of every kind and description. I
hope my learned friends now understand what a raid is—and how
fav the instructions of Mr. Clay to make a raid on St. Albans,
authorised the pillage of three banks, and of the complainant, Mr.
3reck. If danger and deadly strife be elements of a hostile act,
T must be permitted to claim for the attack on St. Albans a more
perfectly warlike character than that upon Darien possessed. If
the test is to be the extent to which wanton destruction and pillage
of private property were carried, I cheerfully yield the palm to the
“ warlike achievement ’”’ of the sacking and burning of Darien, and
frecly admit that Mr. Montgomery acquired thereby more “ martial
glory’ than fell to the lot of Mr. Young.
The sacking and burning of Darien gives us an excellent practi-
cal exemplification of the doctrine of the Federal States as to what
constitutes an act of war. And it forms the best nossible com-
mentary on the scorn, the indignation, and the horror, which the
learned Counsel have been at such pains to express, at the contpa-
ratively insignificant injuries inflicted by the prisoners upon the
town of St. Albans. I say that I can find the record in this book
of a thousand times worse acts than the St. Albans raid, committed
in a thousand instances in the South, by Federal troops, since this
was began.
Mr, Devlin.—That is beside the question.
Mr, Abbott.—If the character of the raid is beside the question,
why has my learned friend urged with such vehemence as an argu-
ment for the extradition of these men, that their acts in the raid
on St. Albans were atrocities prohibited by the laws of war; un-
precedented in modern warfare; and so repugnant to the prin-
ciples which regulate the conduct of nations during war—that
the municipal law, which is usually silent inter arma, must be
aroused to wreak its vengeance upon their perpetrators. If my
| expe-
t many
s those
glory”
r to the
hostile
Le The
mmand
0 be to
T. He
way the
.e inha-
cs every
utterly
tion. I
ind how
Albans,
unt, Mr.
tile act,
a more
sed. It
1 pillage
m to the
rien, and
‘martial
st practi-
| to what
le com-
hich the
contpa-
pon the
his book
pmmitted
ince this
juestion,
n argu-
the raid
ar; un-
e prin-
hr—that
nust be
If my
399
learned friend’s argument was Worl anything, my reply destroys
it. If it was worthless and beside the question,” he should not
have used it.
Fripay, March 24th.
Hon. Mr. Abbott, resuming his argument before Mr. Justice
Smith, said :—In my address ‘of yesterday I endeavored, with as
much care and impartiality as I was capable of, to go over the evi-
dence bearing upon this case. It seemed to me that upon the evi-
dence must chiefly depend the effect of the principles of law, that
have been cited as being applicable to it. ‘These citations have
been numerous and extensive; and if they have appeared to con-
flict, it is chiefly because one party quote the general rules as estab-
lishing his case, omitting the discussion of the exceptions as being
unnecessary ; while the ether insists that the exceptions alone
apply and has cited them only. ‘To arrive at the real state of the
law upon the facts proved, it therefore appears to me to be neces-
sary that the authorities on both sides should be taken together.
‘The general principles of law applicable to circumstances of the
kind under consideration, have been set forth by my learned
friends on this side. The learned gentlemen opposite, however,
have endeavored to make out that there were exceptions to those
general principles, and that this was one of them. Now it 1s to
the examination of the question whether there are such exceptions,
and if there be, whether the circumstances of this case fall within
them ; and again if they do, to what extent they affect the abstract
rights of belligerents, that I shall chiefly address myself to-day.
I think I shall be able to show that in one sense there are exeep-
tions to the incontestable rules of law as to belligerent rights, as
we have laid them down; but in another sense, and in that sense
in which those rules are to be applied to my clients, there are no
such exceptions. I admit that there are certain customs of war
usually observed among nations in time of war, adopted to soften its
asperities, and mitigate its horrors ; but I deny that such customs
constitute law binding upon any belligerent, or enforceable by any
tribunal. In pursuing the course w hich I have thus laid down for
myself, my views will be based principally, if not entirely, upon
the authoritics already placed before your Honor.
When I left off yesterday, I conceive that I had fully discussed
the whole of the facts exhibited by the evidence ; and I submit
that those facts may be summed up as establishing that the pri-
soner Young, then being an officer, of the Confederate States,
actually commissioned for the purpose of harassing the Federal
States on their northern frontier, organized a party of twenty Con-
federate soldiers within the enemy’s lines (namely in Chicago), in
Bias
a3
#h
4 y
i
i,
i
fy
Ki
bs
400
conformity with instructions given to him by his Government; and
that with this party of men, under the sanction of the official of the
Confederate Government to whom he was referred for instructions,
he made an attack on the town of St. Albans; that he pillaged it,
and set fire to it as far he was able; and that on being driven out
of it, he took refuge in Canada. These, I think, are facts clearly
established by the evidence. My learned friends opposite go
further, and say it is proved that the raid was made from Canada.
I contend it is plain that the particular incursion actually carried
out, originated and was planned and organized in Chicago, in the
United States; and that there is no proof tending in any way to
show that the attack originated here, or that it proceeded from here.
And I say that the only evidence offered on this latter head, is that
which establishes that Young himself came to Canada, after he had
organized his little party in Chicago and settled upon the puint of
attack there; and reported his doings to Mr. Clay; getting his
sanction of them after he had so planned and arranged the enter-
prize within the territory of the belligerent; and also that three
of the persons who acompanied him on the raid were traced in a
part of Canada, shortly before the attack on St. Albans. This is
all that is proved by the evidence adduced, and it does not prove
the pretension of the prosecution on this point. I have laid the whole
of it fully and fairly before your Honor, exaggerating or extenu-
ating nothing; and as my learned friends have followed me closely,
and have failed to point out any particular in which I have omitted
any proof favorable to their view, or distorted any of the state-
ments of the witnesses ; I think I may assume that my argument
has been free from any objections to its fairness and impartiality.
Now, I wish to call your Honor's attention to the arguments by
which my learned friends opposite endeavor to destroy the case we
have thus made out. I take Mr. Carter’s objection first ; because
it is an objection to the effect of any commission which could be
issued by the Confederate States, and therefore, takes a wider
range than mere objections to that, with which I contend Young
was fortified. He says, in his proposition submitted to your Honor,
that ‘“ The Queen’s Proclamation of May, 1861, is the exercise of a
‘‘ national right, ‘ the effect of which at most, is to regard both
‘‘ narties as entitled to belligerent rights or privileges of commerce’;
“but these rights must not be confounded with the rights and
“‘ privileges resulting from recognition. England, he says, ‘has
“not recoynized the Confederate States, as an independent
‘“¢ sovereignty ;’ and he argues therefore that all courts and judges
‘‘ are bound to consider the ‘ancient state of things as remaining
‘“¢ unaltered.’ ””
Now, in his fourth and fifth propositions, he presses this proposi-
; and
of the
ctions,
red it,
en out
clearly
site gO
‘anada.
carried
in the
way to
m here.
is that
he had
pent of
ting his
e enter-
at three
ced in a
This 38
ot prove
he whole
r extenu-
closely,
omitted
ne state-
prgument
tiality.
ents by
case we
because
could be
a wider
Young
» Honor,
cise of a
nrd_ both
nmerce’;
hts and
VS, ‘has
pendent
judges
maining
proposi-
401
tion to what he conceives to be it i
ao s full and logical extent. ;
=pp shale Sates law to the commission we die “that
ee mee : e Court is bound to take notice of it and “
Sane aa ae i ty is untenable, and opposed to the ju 0
eg ea el ne and American Courts; because hee se
Eas ae n ° it would be a virtual assumption b Pie
ee Leste to recognize the existence of the Conf de:
oe ee
nee ake, ibmitting these propositi
pd eaaeek _ Nos ioe He has omitted to sorcsive thither ae
pean oe 1¢ recognition of a State as an inde ie .
ete ye ah Ai Fi Fala of a State as a belligerent <1 the
: g mission as evidence, i 2
Ai ve ieee recognition of the Conse ate Shee
ope ua arene iets my learned friend’s proposition wo 1d
een correct in stating that England has not re : r
ae be ee of the Confederate States ; and not hee
ae o> se bi ee so recognize them. I alin tahat:
it this: é sible instrument of evi ?
a age ates this commission, or to eae ieee ne
any aus ? ae ssary consequence from the fact that Hala lise
ees rete " seceded States as a sovereignty; admitti 2 re
ae oe : se ape recognized them as a belligerent ? ite .
feta ee say about that. I shall cite his oa ‘3
ne ee oe aan exposure of the fallacy he conte :
ererees a oe himself, to refute himself. Te an :
oie sa : : rst proposition, tnat the effect of jisslaviig- the
earns He ion is, to cause both partics to be regarded e
sane Cen ae rights ; now, I would like to nea Gon i;
cic ie een a : e considers to be belligerent rights. I tas
ane sega Bn opinion that making war is one ; and as ae
ae chee te out officers and soldiers, the right of soins
aie fae Now, Tats cance ae be De to the right of
ae bmit the we concede to the § ¥
oe ee Kseareetene officers, we must aos tnt
ame eta a) appear before our Courts. To declare that
ie paar ght to appoint an officer, and then to declare rT
gical and cede aided sees ue palibe cat lo
hee no Of V no nation could b i
Waid rn tigre 2g vat
ve : y make war upo i
etree ae not have any army or navy, as i ae:
SD oo beep yep yee ba fern
- umed by any State; and there
402
really is not a shadow of ground for pretending that Great Britain
now occupies it. But in addition to the authority of my learned
friend himself, on this subject, I will avail myself of the books he
cited, as a means of finally disposing of his proposition. He cited
Halleck, pp. 75, 76, who says: ‘ The recognition of the independ-
ence and sovereignty of a revolted province by other foreign states,
when that independence is established in fact, is therefore a ques-
tion of policy and prudence only, which each state must determine
for itself; but this determination must be made by the sovereign
legislative or execctive power of the state, and not by any subor-
dinate authority or the private judgment of individual subjects.
And until the independence of the new state is recognized by the
government of the country of which it was before a part, or by the
foreiyn state where its sovereignty is drawn in question, courts of
Justice and private individuals are bound to consider the ancient
state of things as remaining unaltered.
This is excellent and undisputed law. But look at pages 73 and
74, of the same book, ‘ where General Halleck distinctly admits
that the rights of belligerents, which neutrals may concede to the
parties to a civil war, include all rights necessarily incidental to a
state of war. ‘This is to be found on the page next but one to the
page cited by my learned friend. So that the very book, which
Mr. Carter has first cited, establishes the proposition that the
state of belligerency implies the possession of all rights neces-
sarily inc‘dental to war: and if it does, it compels those who
recognize the belligerency, also to recognize the only mode in
which that character can be preserved, and its functions per-
formed, namely the creation of armies. And as armies are
composed of officers and soldiers, and the belligerent must have
the right of appointing officers; that recognition renders it neces-
sary for our Courts to recognize such appointments when made.
My learned friend also cited ‘“‘ Wheaton,” page 47, whose lan-
guage is almost identical with that of Halleck; the latter being in
fact copied almost verbatim from Mr. Wheaton’s book. Well, nobody
disputes the doctrine there laid down. But is that doctrine applicable
to this case? Mr. Wheaton’s book will itself answer my question.
He says at page 40: “If the foreign state professes neutrality, it
is bound to allow impartially, to both belligerent parties, “ the free
“‘ exercise of those rights which war gives to public enemies against
‘“‘ each other ; such as the right of blockade, and of capturing
‘‘ contraband and enemy’s property.”” Mr. Lawrence’s note upon
this passage, illustrates it by examples drawn from the history of
the struggles between England and the present United States ;
Spain and her colonies; Turkey and Greece ;. and finally from the
existing state of things in America. (Mr. Abbott here read from
iy
itain
rned
cs he
cited
pend-
tates,
ques-
rmine
ereign
subor-
bjects.
by the
by the
urts of
ancient
TS and
r admits
le to the
ntal to a
re to the
k, which
that the
ust have
it neces-
» being in
1, nobody
pplicable
question.
trality, it
“‘ the free
3 against
403
Wheaton, p. 43, in notis, the description given of the position of
England and France with regard to America. )
Mr. Carter.—Will you read the previous paragraph ?
Mr. Abbott.—Certainly (reads it, laying down the rule that
in this question “ of belligerent rights, as of a more formal acknow-
‘¢ ledgment of independence, the decision is with the Government
‘‘ and not with the Courts ;’’ and referring to a decision at Galves-
ton in Texas respecting a capture on behalf of an unrecognized
Mexican republic or state,) I admit that the recognition cither of
belligerent rights, or of independent sovereignty must be the act of
the Government, not of the courts; but, in this case, the British
Government has admitted the belligerent rights of the seceded
States. My argument is that the recognition of those States as
belligerents gave them a right to all the privileges of belligerency,
and, consequently, the right to appoint their own officers. In the
ease referred to, the Government had not recognised the belliger-
ency of the State in question, and did not, consequently, recog-
nise its right to capture ; but if the Government had recognised
the belligerency of that State, it certainly would not have denied
the validity of a capture made on its behalf.
It is a fact also which illustrates the effect of a recognition of
belligerency, that England has had communication with persons
informally representing the Government of the Confederate States.
Mr. Carter.—I do not dispute, that recognition is an act of
Government. My proposition is that your Honor is restricted by
the judicial character you fill, from taking upon yourself to concede
that recognition which Government alone can grant. I refer to an
authority I did not cite before ; pp. 119 and 120 “ Halleck.”
Smith, J.—You both agree on the principle. It is the Govern-
ment alone that can recognize the claim of any nation to independent
sovereignty. But the question Mr. Abbott puts is this:—Since
the sovereign of England has recognized the belligrent character of
the Southern States; then although the recognition falls short of a
recognition of complete independence, yet are not the Courts
bound to recognize them to the same extent as the sovereign has
recognized them ?
Mr. Carter again read from Wheaton, page 42, and observed :
As a national matter there is a vast difference between recog-
nizing the belligerent character of those States and their separate
national character ; and as long as the latter is not recognized by
the sovereign, the Court can not recognise it.
Judge Smith.—It is perfectly clear that the Sovereign of this
country not having recognized them as an independent nation, I
cannot do so.
40-4
Mr. Carter.—Then you cannot recognize the commission given
to the prisoner Young by such a Government.
Mr. Abbott.—That is a non sequitur. I agree with Mr. Car-
ter’s proposition that the power of recognition rests solely with the
sovereign power of the State, and tha. the independence of the
Southern States not having been recognized, your Honor cannot
treat them as independent. But I utterly deny the correctness of
his conclusion. The Queen’s proclamation of May, 1861, is
express in its recognition of the belligerency of the Confederate
States, and in its injunctions for the observance of a strict neutra-
lity in the strife between them and the Federals—and that, I con-
tend, is sufficient to render the military commissions of the Confed-
erates receivable in evidence here. My learned friend Mr. Carter
cites 2 Phillimore, p. 25, to the effect that: “ It is a firmly establish-
ed doctrine of British, and North American, and indeed cf all juris-
prudence, that it belongs eaclusively to Governments to recognize new
States ; and that until such recognition, either by the government
of the country in whose tribunals a suit is brought, or by the govern-
ment to which the new State belonged, courts of justice are bound
to consider the ancient state of things as remaining unaltered.’ No
one denies this. But Phillimore makes exactly the same distinction
that Wheaton does ; for at page 17, he points out the effect of the
observance of neutrality in a struggle between an old and a new
State, and states that it has some beneficial effect with respect to
the nation which is fighting for independence. For, he says, it
allows impartially to both, equal rank and character as belligerents.
Mr. Carter.—I say that England has gone the length of acknow-
ledging that a civil war exists; that she has declared her neutra-
lity, and, as a consequence, recognized the belligerent capacity and
belligerent rights of the combatants. Therefore, I admit the cor-
rectness of the proposition he enunciates, but it is the application
of it I deny ; and I say, there is a vast distinction between acknow-
ledging belligerent rights, and the rights and privileges resulting
from the recognition of the sovereignty and independence of a
state. For this is not a war waged between two separate nations
possessing distinct rights and sovereignty, but a civil war in a
country with which we are on terms of peace, and towards which
we have treaty stipulations.
Mr. Abbott.—It I admit every syllable my learned friend has
just uttered to be true, which I might do, how does it affect the
question? What he says, does not in any way even purport to con-
trovert my pretension, that the recognition of belligerent rights—
which he admits has occurred—involves as a necessary consequence
the recognition of a commission issued by one of the belligerents,
as a legal instrument of evidence. ‘To render the distinction he
riven
Car-
h the
f the
annot
ess of
G1, 18
lerate
eutra-
I con-
‘onfed-
Carter
ablish-
| juris-
ze new
rnment
rovern-
bound
> No
tinction
/of the
a new
pect to
says, it
rerents.
ncknow-
neutra-
ity and
the cor-
hlication
icknow-
esulting
ce of a
nations
ar in a
s which
end has
fect the
t to con-
‘ights—
equence
gerents,
tion he
Hi
PE GO NET IS
405 :
has just drawn of any value, he must shew that nothing less than
the universal recognition of a State as an independent sovereignty
will justify the issue of a commission. In support of my views on
this point I will refer to two or three authors, but will not per--‘t
myself to dwell upon it at any length. Vattel, at page 424, spea. -
ing of the position of parties in a civil war, says:
‘“‘ A civil war breaks the bands of society and government, or, at
“least, suspends their force and effect: it produces in the nation
‘‘ two independent parties, who consider each other as enemies, and
“acknowledge no common Judge. Those two parties, therefore,
‘¢ must necessarily be considered as thenceforward constituting, at
‘* least for a time, two separate bodies, two distinct societies. Though
** one of the parties may have been to blame in breaking the unity of
“‘ the State and resisting the lawful authority, they are not the less
‘¢ divided in fact. Besides who shall judge them? who shall pro-
‘¢nounce on which side the right or the wrong is? On earth they
‘have no common superior. ‘They stand, therefore, in precisely the
** same predicament as two nations, who engage in a contest, and,
** being unable to come to an agreement, have recourse to arms.”
T have here also the work of an author, who has by no means
acquired the position as a legal writer, which he will undoubtedly,
at some future day attain; but whose writings on certain branches
of international law have attained a wide spread reputation. I refer
to Mr. George Vernon Harcourt, who writes, under the name of
‘* Historicus.”’ Ie appears rather to lean towards the Federal
side in his sympathies; and his views of law, have been in some
respects vigorously combated, on the ground that they unduly
incline in the direction of his feclings. I am sure my learned
friends will accept his opinions as deserving of the highest consid-
eration, if not as being absolutely conclusive: and I find that he
attaches a very different kind of importance to the recognition of
belligerent rights, from that which my learned friends would give it
At page 13, he says:
“‘ Tt is not true, however, in the meanwhile, that foreign powers
‘¢ are entirely without the means of redress against the persons owning
“¢ the allegiance of the new and inchoate government. The recognition
“¢ of the insurgents as belligerents gives them quite a sufficient person-
“¢ ality to enable foreign powers to address to them remonstrance, and
‘“ to receive at their hands satisfaction. A semi-official correspond-
‘‘ ence actually took place at the beginning of the strife in America
‘“‘ between the English Foreign Office and President Davis, on the
‘“‘ subject of the rules to be observed towards neutral nations, in the
‘¢ maritime war that was about to be waged. A government which
“¢ is sufficiently incorporated to enjoy the rights of a belligerent can-
‘“‘not be suffered to evade the correlative duties which are incum-
“¢ bent upon it.”
406
But though my friend, Mr. Carter, submitted this objection to
Lieut. Young’s commission as something new, it really is not new
to the Courts. It is true that it 1. a new thing to hear his propo-
sition of law used, in an attempt to exclude the commission of a
belligerent from the consideration of the Courts. But the effect of
such a commission, and its admissibility in evidence have been re-
peatedly pronounced upon. It is spoken of, for instance, in the
Chesapeake case, to which reference has already been repeatedly
made. If there had been a commission produced in that case, the
prisoners would, no doubt, have been discharged ; for Judge Ritchie
repeatedly and plainly speaks of such a species of authority as
ample evidence of belligerency. And if sufficient evidence, can it be
said that it would not be legal evidence? In the Roanoke case there
was a commission produced by the prisoner, whereupon the Attorney
General immediately declared the case could go no further, and the
prisoners were discharged by the Judge. And Earl Russell, in his
letter to Mr. Adams on that subject, gave the fact of the production
of a Confederate commission as the sole reason—and a sufficient
reason—for sustaining the discharge. It is true that Earl Russell’s
opinion is not a judicial one ; but it is of great weight on this point,
for my learned friend’s objection rests chiefly upon a reason which is
as much one of foreign policy as of law; and Earl Russell is the
statesman who at the date of that letter was at the head of the
department of Foreign Affairs; and he wrote it as the opinion of his
Government in that behalf. In the case of the Nashville, in 1861,
Karl Russell wrote in peremptory terms to Mr. Adams, denying
that the act of the officers and crew of the Nashville could b>
treated as pirates for burning an American vessel at sea; and
quoting in his denial Mr. Adam’s assertion that their act “ approxima-
ted within the definition of piracy.” And the e.pressed reason of
that decision was that ‘the Nashville was a Confeacrate vessel of
war ;”’ and ‘that her commander and officers had commissions in
the Confederate service.”’ Even in the Philo Parsons case, it was
not denied that the Court had a right to recognize the commission
of the accused ; but there, the prosecution picked out the offence of
taking $20 from the steward of the boat that was assailed, and
charging the prisoners with that offence, argued, that as they had
gone on board a vessel and robbed a steward of $20, they were
not entitled to the rights of belligerents. And the Court sanctioned
this isolation of an incident in the capture of the Philo Parsons, from
the leading fact of the capture itself; pronouncing that incident a
robbery, in the face of the undoubted belligerent character of the
act taken as a whole. It is fortunate for the officers and crew of
the Nashville that they did not fall within the jurisdiction of the
Upper Canada Judges ; for probably there never was a capture, in
n to
new
“Opo-
of a
et of
n re-
. the
tedly
, the
tchie
ty as
it be
there
mney
d the
in his
iction
icient
ssell’s
point,
ich is
is the
yf the
of his
1861,
nying
Vy bs
and
xima-
Bon of
sel of
ns in
t was
ission
sce of
, and
had
were
oned
from
ent a
the
bw of
the
e, in
e
«
407
which private property was not taken by the captors. But it 9
not pretended in the Philo Parsons case that the commission could
not be received in evidence for the defence.
It appears therefore, that in these cases, which are all I recol-
lect, as having arisen since the war broke out, the commission of
the Confederate States as authority for belligerent acts, was ex-
pressedly or impliedly: recognized as provable. And I will now
close this part of the argument with a citation from Wheaton’s
Reports, taken from the very same case cited by my learned friend.
(3rd Wheaton, p. 610, U.S. against Palmer.) This is what Chief
Justice Marshall says in that case :
‘“‘ It may be said generally that if the government remains neu-
*¢ tral and recognises the existence of a civil war, its courts cannot
*‘ consider as criminal those acts of hostility which war authorizes,
and which the new government may direct against its enemy.
‘¢ Tt follows as a consequence from this view of the subject, that
persons or vessels employed in the service of a self-declared
government thus acknowledged to be maintaining its separate
existence by war, must be permitted to prove the fact of their
‘being actually employed in such service by the same testimony
‘¢ which would be sufficient to prove that such vessel or person was
“ employed in the service of an acknowledged state.”
The State here spoken of was not an acknowledged State. It was
not even a State acknowledged by the United States as belligerent
as far as I recollect ; but it was actually maintaining its position as
a separate State, though without any recognition by the United
States, either of its belligerent status or of its sovereignty. Yet
Chief Justice Marshall declares that a prisoner, holding a commis-
sion from such a State, must be permitted to prove his commission,
in the same manner as if employed in the service of an acknow-
ledged State. I venture to submit, therefore, that the novelty of
Mr. Carter’s application of the rules of law he has cited, is more
remarkable than its soundness: and that your Honor is bound to
receive Lieut. Young’s commission as admissible evidence in this
matter.
The next point to which I intend to address myself, is one that
my learned friends opposite have laid much stress upon, though I
think they have stated it in a peculiar manner. ‘They assert that
the act complained of is not an act of war at all; for, they say it
is neither an act of war per se, nor a constructive act of war. I
would like to know what they mean by an act of war per se. Is
the arraying of thousands of men against each other in bloody con-
flict an act of war per se? My learned friends will probably say
itis. Then I say the Gordon riots in London, and the Macready
riots in New York were acts of war per se. And perhaps they
408
will also assert that the shooting of a solitary man in the dark by
another solitary man, is not an act of war per se. In that case,
unless it can be shown by a resort to argument, that it is a ‘ con-
structive” act of war, the sentinel who shoots an individual approach-
ing his post must be regarded as a murderer. Where in the books do
they find this distinction between an act of war per se and a construc-
tive act of war? What jurist treats of it ? I think among the piles of
volumes that have been displayed before your Honor, my learned
friends might have found some stray sentence that would have sus-
tained them. But we have heard nothing of the kind. In fact, I
am under the impression that my learned friends are the first and
only jurisconsults who have ever drawn that distinction. Mr.
Johnston attempts to dispose of the question by arguing as he
always does, in choice and plausible language, which gives a force to
his argument that it does not intrinsically possess—that no man can
mean to say that the easing of poor old Mr. Breck of two or three
hundred dollars is an act of war per se. ‘* What,” he asks, ‘ is
‘‘ the natural consequence of robbing Mr. Breck? Is it that the
‘“‘ national power of the United States is prostrated, or in the
‘yemotest manner affected by it? The natural consequence is
‘“‘ that Mr. Breck loses his money ; but it requires a great deal of
‘‘ imagination to conceive, and a good deal of ingenuity to explain,
‘ how that fact tended to exhaust the national resources, or attack
‘“‘ in any manner the national existence.”” Ife goes on in the same
strain through half a column of the paper in which his speech
appears, and by holding up the particular act of pillaging Breck
as being a petty and inconsiderable act, incapable of affecting the
result of the war, he endeavors to show that it could not be what he
calls war per se. And my learned friend, in support of this kind of
argument, makes this characteristic statement. He says: “ As
‘¢ far as external appearances are concerned, to conclude only from
‘“¢ what was described to us by the eye witnesses of this procced-
“ing; that it was a warlike operation may, I think, be fairly said
‘¢ to be impossible. If common sense were not quite a sufficient
guide, by itself, to conduct us to this conclusion, the authorities
already cited by my learned friend Mr. Bethune are upon this
point conclusive. Vattel, Martin, Manning, Polson, Woolsey,
Kent, Wheaton, and Halleck, concurring, as they have been
shown to do, upon such a point as this, may safely be deemed of
sufficient authority to guide us to the decision of what is, and
what is not considered upon general principles to be an act of
war.’ Well, now, as it happens, no one of those authors has
said, that the pillage and sack of a town is not an act of war. No
one of them has drawn the distinction between an act of war per
se and a constructive act of war. Not one of the citations quoted
k by
case,
con-
oach-
ks do
struc-
les of
nrned
e sus-
act, I
+ and
Mr.
as he
yrce to
an can
» three
8, 66 1s
nat the
in the
once 13
deal of
-xplain,
attack
Le same
speech
Breck
ing the
what he
kind of
66 As
ly from
sate
said
eae
rorities
on this
oolsey,
e been
med of
is, and
act of
yrs has
. No
ar per
ioed
409
by Mr. Bethune, on re labor and learning Mr. Johnston pro-
fesses to rely, directly or indirectly lays down any distinction
between an act of war ae se and a constructive act of war; nor
do any of them treat at all upon ‘* such a point,” as my learned
friend is urging, when he pours out their names so fluently. War
does not consist merely nor even mainly of battles between great
armies, although the modern tendency is to confine it to them as
much as possible. On the contrary, it is composed of innumerable
minor acts of hostility, in which, unhappily, injuries to individuals
and to private property are of momentary occurrence. My learned
friend’s remarks, as applied to Breck, might, therefore, with equal
propriety and equal justice, be used with respect to incidents in
this and in every other war, which occur hourly—which are occur-
ing while I speak. When a cottage in the Shenandoah valley was
burned, was ‘the national power” of the Confederates ‘ pros-
trated ” by so doing? When one of the pillagers of Darien
carried off a table on his head and a pair of chickens in his hand
did those acts ‘‘ exhaust the national resources, or attack in any
manner the national existence ?’’ Such puerilities as these appear
smart, but they are not argument, and do not even resemble argu-
ment. ‘They are the more excusable in my learned friend, how-
ever, as they constitute quite as large an element in the Burley
judgment as they do in his address; with this difference that he
has greatly the advantage in the mode in which he has placed
them before your Honor.
What the authors, whose names Mr. Johnson runs over so glibly,
do contain, however, is a clear and conclusive statement of what
the rights of nations at war with each other really are. And they
certainly do lay down, as an exception to the general rule alread
sufficiently established by our authorities, that all subjects of
each belligerent are made enemies by war, and may kill each
other and despoil each other of their property; that the war
shall not be waged with any more violence or cruelty than is
necessary to the end which the nations at war intend to gain.
That is the rule which nations in modern warfare generally volun-
tarily observe. But this exceptional rule is not only itself subject
to a great many exceptions, but it is one not enforcible in any
way, except by reprisals or retaliation.
Moreover, the tenor of every citation made f from the other side, as
to the mode in which war ought to be conducted, is, that both par-
ues are entitled to carry on war, in such manner as they may think
proper, without responsibility to any one; and especially it is
declared in most of them, that no neutral or other power can judge
or decide whether one mode or another * proper or improper; or
can punish in any manner or way, any breacu of what they may
+10
consider to be the rules according to which war ought to be con-
ducted. In every author, I say, there is to be found the assertion
that there is no absolute nor enforcible rule in such matters; but
that the will of the nation carrying on the war, alone can decide in
the last resort.
Judge Smith.—It is a matter of conscience.
Mr. Abbott.—A mere matter of conscience. The difference in
this respect between what are called the laws of war and raunicipal
law, is similar to the distinction made by Pothier, between the for
interieure and the for exrterieure.
Judge Smith.—In order to bring that point to a practical test,—
if it be asserted that the laws of war, or the laws of nations have
been violated, what tribunal can decide whether they have been
or not ¢
Mr. Abbott.—That is the point.
Mr. Carter.—I do not contend that when once an act is estab-
lished to be an act of war, the Court can take into consideration its
nature, or character, or deal with the authors of it. But that on
the contrary, when it is admitted to be an act of war, it is beyond
the control of any municipal court. I contend, however, that the
circumstances surrounding this case show it was no act of war at all.
Judge Smith.—We are to determine, in the first instance, whether
the act complained of is an act of war or not. If it be, what tribu-
nal can try its propriety ¢
Mr. Carter.—I say that this offence is not only a breach of civil
and municipal law, but a breach of international law. It involves
both. In the first place you can not regard it as an act of war, as
the prisoners previously lived here, on neutral territory.
Judge Smith. You must not confound propositions. If the act
is done with authority—in obedience to orders given on behalf of
a State recognized by our Government, so far as carrying on the
war is concerned, and vet is alleged to be in violation of the rules
of war ; who is to try that question? ‘To say that it is to be tried
in any neutral country is absurd.
Mr. Carter.—What I contend for is, that there is no authority
proved.
Judye Smith.—That is again another point. That is the point
T want to bring you to.
Mr. Carter.—I say that if the Confederate States were an in-
dependent nation, they could not give authority to those parties to
act as they did at St. Albans.
Judge Smith.—The real difficulty of the case is this, has there
been shown to have been any competent authority under which
these men acted ?
Mr. Devlin.—Was there a commission? or has the act been
avowed ?
ye cOn-
gertion
nS 3 but
ide in
rence In
unicipal
the for
1 test,—
ms have
we been
is estab-
ration its
t that on
is beyond
, that the
war at all.
e, whether
hat tribu-
ich of civil
t involves
of war, as
Tf the act
behalf of
ing on the
the rules
to be tried
, authority
s the point
ere an in-
parties to
se git EO
411
Judge Smith.—If, as these men allege, they acted in obedience
to orders issued by competent authority, and only did what, in the
execution of their duty as soldiers, they were bound by their alle-
giance to do, then the simple question is, have they proved such
orders? If they have not, then all other considerations fall to the
ground, and they stand here as ordinary criminals.
Mr. Bethune commenced to explain what he meant by an act of
war per se.
Judge Smith.—Neutrals cannot investigate the character of an
act of war. When nations are at war they act as they please
towards each other; and a neutral has no power to say this is an
act of war, or is no act of war. ‘Ihe assumption of the contrary
doctrine would lead us into a labyrinth of difficulties.
Mr. Abbott.—This discussion has brought the question raised
respecting acts of war, to an intelligible point; and the view of it
just stated by your Honor is the one I have been all along con-
tending for. With regard to the impression conveyed to me by what
your Honor has just said, as to proof of express authority being
requisite to enable you to regard the prisoners’ acts as hostile acts,
I beg respectfully to submit that I think the authorities would
sustain a wider view of the functions of a commissioned officer. It
is not of much importance to my case which should be adopted ;
for I consider the express authority fully proved. But I do not
wish your Honor to think that I admit that an officer, with soldiers
under his command, may not sack and burn an enemy’s town at
any point and at any time while war continnes. I contend that if
he had never had any instructions from Mr. Clay, the production
of Mr. Young’s commission as an officer, and the proof that he
had a party of twenty soldiers acting under his orders; the act
charged being that of attacking, and, as far as they were able,
sacking and burning a town in Vermont; would have been sufficient
to defeat this demand. I say that the fact of himself being an
officer, and his command being soldiers of one of the belligerents,
acting on their behalf, against the other belligerent, and in their
territory, is sufficient, without any instructions whatever from his
Government, entirely to deprive the municipal law of Vermont of
all power over him, and entirely to divest the act he did of the
character my learned friends on the other side wish to attach to it.
It could never be contended under such circumstances that the
acts they committed were mere violations of the municipal law of
the State cf Vermont. ButI do not intend to argue this point
further, as J am quite satisfied our position, as regards it, is fully
established.
To return, then, to the authorities of my learned friends, and the
principles they attempt to draw from them, I wish once for all to
412
say, that I contend that the statement Lz the learned authors cited,
that certain hostile acts are unlawful, conveys nothing more than
that they are not in accordance with the course of action which
civilized nations usually follow in war. As I have repeatedly re-
marked, none of those authorities class acts, such as the present,
among what are termed unlawful acts ; but if they did, the fact of
their being unlawful, in the sense in which they use the word, would
not bring them within the jurisdiction of the ordinary municipal
tribunals. And another line of argument and authority they have
followed, is quite as easily answered. Citing from numerous books
in support of their view, they insist that it is unlawful for persons,
though belonging toa belligerent nation,to commit depredations within
their enemy’s lines in disguise ; and that such marauders are lable
to be treated with extreme severity. All this is true enough.
Even belligerents, if they are acting within the enemy’s lines in
disguise, are liavie to be shot or hanged; that is, they are
amenable to the laws of war, and are liable to be tried by court
martial as guerillas, spies, and the like, and executed just as Beall
was. Or, if the offended belligerent chooses, he may shoot or
hang them without trial. But none of those authorities show that a
gucvilla or spy is to be tried as an offender against the ordinary
municipal law, or that he is amenable to it in any way. Beall’s
cnse 1s an instance of the construction put upon these authorities
by the United States themselves. He was charged with several
acts, which, under ordinary circumstances, would have sustained
indictments before the regular courts, but there was no pretence
of his being justiecable by those courts. He was tried by a mili-
tary court for these very acts, as violations of the laws of war, and
he was found guilty accordingly. And when my learned friends
cite the Burley case, they should remember that the chief offence
charged against Captain Beall, as a violation of the laws of war,
for which he was tried by a tribunal organized under the laws of
war, was the very act which Upper Canada Judges held to have had
nothing to do with war. Either Beall was illegally condemned and
executed, therefore, or Burley was illegally extradited. I shall
content myself at present with saying on this point that I am pre-
pared to admit that the presence of Young in the enemy’s country,
with a party of soldiers in civilians’ dress, would have rendered him
and his party liable. by the laws of war, if captured, to be treated as
spies or guerillas, and hanged or shot on the spot; and I submit
that a verification of the authorities cited on this point will show that
they carry my learned friends no farther. But that they in no
instance establish that persons so liable to punishment, are amenable
to the Courts, and consequently could be extradited, under the
Ashburton treaty. I should except, however, the letter of Dr.
ors cited,
nore than
ion which
atedly re-
e present,
he fact of
ord, would
municipal
they have
rous books
r persons,
ions within
; are liable
e enough.
*g lines in
. they are
.d by court
ist as Beall
y shoot or
show that a
he ordinary
Beall’s
authorities
vith several
e sustained
o pretence
d by a mili-
of war, and
ned friends
hief offence
laws of war,
the laws of
to have had
demned and
d. I shall
t I am pre-
hy’s country,
ndered him
be treated as
nnd I submit
rill show that
t they in no
re amenable
, under the
etter of Dr.
|
eager
TPES SR SS
Ce ea ea
413
Lieber to Judge Advocate Bolles, writ on on the
last for the Beall case and for this one, and RO ERO thy
Court by the Judge Advocate, as authority in the Beall case
(p. 85); and now read by my learned friends as an authorit
here. It is a new feature in the argument of a case to hea 4
letter from the Plaintiff’s Counsel, giving his opinion on a ae
before a Court, read to that Court as an authoritative exposition of
the law of that case. And it is more extraordinary still to hear
a letter from an obscure person in the United States, upon a qu z
tion of public and international law arising between that Ge
ment and the Government of Great Britain, quoted as solving ‘ae
question ; notwithstanding that the writer, in endeavoring to est
lish his position, characterizes the doctrine approved of in Fa fi
cial declaration of Earl Russell as the organ of the British ae
ay as oe or suet absurdity, and reckless Teal
nor ”” as to “ fairly stagger’? a jurist or a s his:
tory.” My learned friend, Mr. J sian: found a Pickeiekcan
terpretation for the term “ insolence,” but he wisely abstained
from secking to translate ‘“ absurdity and reckless disregard of
honor. His position, while he argued that “insolent” meant
unusual,” was sufficiently pitiable, without being prolonged during
the performance of a similar operation upon Mr. Licber’s other
polite expressions. I shall take the lhberty, therefore, of pa ae
no further attention to this, the solitary favorable authorit ahi h
my learned friends have been able to find, or their clients . m -
oO for pag el a of this case. eo
s What your Honor has said on the propositi
friends as to acts of war, relieves me to ans extent ae i a
I had imposed upon myself, of following seriatim the authorities
cited on that subject by the other side. But I will glance ai
two or three of them. Mr. Devlin cited, chiefly, from Vattel; and
Mr. Bethune, also, made a very extensive use of his work. I think
therefore that I shall merely refer your Honor to the citations fur
nished in support of our 7th, 8th, 9th, and 10th propositions ; and
then content myself with taking the quotations made by m learned
friends from Vattel, and showing how far my idea, with Baad rs
them, is borne out. My learned friend commenced by a citation
from Vattel at page 851, and Mr. Bethune by another from page
347. These are the very first quotations they made, and tt ‘ig
remarkable how they completely deprive my learned friends’ argu-
ments of all force in law, leaving to it, however, its full value Ae
exposition of what war ought to be. At page 347, after la ne
down the rule that in a lawful war where the end ig iuefal; the
belligerent has a right to employ all the means which are neces :
for its attainment, Mr. Vattel continues : ge
i
4
f
f
it
4
ft
414
‘“¢ The lawfulness of the end does not give us a real right to any-
‘ thing further than barely the means necessary for attainment of
‘this end. Whatever we do beyond that, is reprobated by the
‘ law of nature, is faulty and condemnable at the tribunal of con-
** setence.”
And in the very next paragraph, assuming as an axiom that
‘it belongs to each nation to judge of what her own particular
‘* situation authorises her to do,’ he proceeds to show that a
sovereign who unnecessarily adopts extreme measures and carries
on the war with unnecessary severity, ‘is not innocent before God
and his own conscience.” These few lines embody the principle,
the development of which is the subject of the 8th chapter of Mr.
Vattel’s third book. It is the “ tribunal of conscience ” to which
a Government is amenable, when it carries on a war in 4 manner
inconsistent with the humane rules which are usually observed in
modern times. It is before ‘“‘ God and his own conscience ”’ that
he will be held culpable, not before any human Court or Judge.
But there are numerous circumstances mentioned by Mr. Vattel in
the very pages my learned friends have cited, where all the humane
rules they approve of s» highly, may be violated, without incurring
even the reprobation oi :ue conscience,—such are those things which
are done by way of retaliation and reprisal.—And these were the pro-
fessed objects of the St. Albans raid, and constitute the most ob-
vious of those which can be supposed to have actuated the Confeder-
ate Government in devising it. Then, if Mr. Vattel’s doctrine cited
by my learned friends be correct, it is only the Confederate Gov-
ernment to whom “it belongs to judge what her own particulary
‘* situation requires her to do ;” and if she judges wrong and per-
petrates acts which are not justified by the circumstances, it is
enly “to God and to their own consciences” that her rulers are
responsible.
‘The remainder of the same chapter has been cited at different
points, where various kinds of injuries to an enemy are declared to
be unlawful. I have already shown the effect of this kind of un-
lawfulness, but it may be useful to pursue the argument a little
further. Mr. Devlin reads to us from page 851, that women,
children, and feeble old men do not come under the denomination
of enemies. And that soldiers should not harm those classes, nor
peasants and others, who do not carry arms. But he says in sec-
tion 148: ;
‘¢ But all those enemies thus subdued or disarmed, whom the
‘¢ principles of humanity oblige him to spare,—all those persons be-
‘* longing to the opposite party (even the women and children), he
‘¢ may lawfully seize and make prisoners, * * * * at present, indeed
‘¢* * *, women and children are suffered to enjoy perfect security,
-
«
©
o
to any-
ment of
by the
of con-
om that
wrticular
- that a
| carries
ore God
rinciple,
r of Mr.
to which
, manner
erved in
ec”? that
r Judge.
Vattel in
> humane
ineurring
igs which
e the pro-
most ob-
onfeder-
ine cited
ate Gov-
articular
and per-
ces, it 1s
ulers are
different
clared to
d of un-
a little
women,
bmination
sses, nor
vs in sec-
rhom the
rsons be-
lren), he
t, indeed
security,
415
‘and allowed permission to withdraw wherever they please. But
** this moderation, this politeness, though undoudbtedly commendable,
(3 not in itself absolutely obligatory ; and if a general thinks fit to
‘‘ supersede it, he cannot be justly accused of violating the laws of
‘war. He is at liberty to adopt such measures, in this respect, as
‘* he thinks most conducive to the success of his affairs.”
So that, if the enumeration of non belligerents, as persons whom
it is unlawful in war to injure, had any bearing on this case, which
it has not; the context, in the very page from which the rule is
drawn, but which my learned friend omitted to read, points out
that this unlawfulness is not absolute; it is subject to no Judge
here on earth, and is punishable by no tribunal.
But let us look a little closer at this argument of my
learned friends, and apply it to this case. Admiting for a
moment that the St. Albans attack falls within the description
of unlawful acts of war, would that fact bring the prisoners
within the treaty? The killing of prisoners who have surren-
dered we are told is unlawful. But what is the consequence
of putting a prisoner to death after his surrender? Is the
person who kills him guilty of murder? Can he be demanded and
extradited, if he is found in a friendly country with whom his
enemy has such treaty as ours? Take the case of Gen. Morgan,
the gallant Confederate cavalry leader, who was shot dead in a
garden by a party of F ‘eral soldiers while unarmed, and after he
had surrendered himsel. ; was stripped of his clothing and his corpse
flung into the nearest ditch. According to Vattel, and to the
hundreds of other writers to whom my learned friends have
referred on this very point, these were unlawful acts justifiable on
no grounds whatever; and Heaven forbid that I should dispute
such a proposition. But would the murderous ruffian who killed
him be lable to be tried by any municipal tribunal for that crime ?
Would the sordid outcasts who tore the garments from the yet palpi-
tating corpse, be held guilty before the Courts, of an ordinary theft ?
To hold that they would be, would be in one sense as shocking to
the opinions of the civilized world, as to approve of the infamous
ontrages which I quote in illustration of my argument.
Mr. Devlin again cites pages 857 and 859 of Vattel ; but for what
purpose? ‘To prove that an enemy may not lawfully be treacher-
ously assassinated or poisoned! We don’t require books to
be read to us to prove such propositions. ‘They cannot be
disputed ; but they are quite as irrelevant as they are true.
History almost within our own time gives us instances of
the rule; for we know that the assassination of Napoleon Bo-
naparte was proposed to England; and we know how the pro-
posal was received. Surely we might have been spared these
a
416
quotations, as well as that which follows them at page 362. A
moral exhortation is very good in its place; but it is not by the
views of philanthropists as to what the world ought to be, that we
are to be governed in administering the law. Mr. Devlin read us
half of page 362, but if he had also read the first two lines of it, I
think he would have found it unnecessary to proceed. Mr. Vattel
prefaces the portion Mr. Devlin read, by saying, ‘¢ I cannot con-
‘* clude this subject of what we have aright to do against the person
‘‘ of the enemy, without speaking a few words concerning the dis-
** nositions we ought to preserve towards him.” ‘This really covers
the whole ground. Our authorities will show your -Ionor what
belligerents have a right to do. My learned friends attempt to
limit that neht to what Mr. Vattel thinks they ought to do. I
imagine there can be little doubt which rule your Honor must
follow.
In the next chapter of Mr. Vattel’s great work, which treats of
the rights of war with regard to things belonging to the enemy,
from which Mr. Bethune has largely cited, the same distinction is
to be found pervading the whole discussion. The right to seize
upon and appropriate to ourselves the property of our enemy is
stated in direct terms (pp. 564, 860.) But the duty of exercising
this right with moderation and humanity is strongly urged upon
belligerents ; and upon these statements of duty my learned friends
build un the fallacious proposision, that because they think the pil-
lage of St. Albans does not square with Mr. Vattel’s view of pro-
priety, therefore it 1s unlawful; and, therefore, also, the priscuers
are taken out of the immunity which the laws of war afford them :
and must be extradited. But in reality the pillage of an enemy is
nowhere declared to be unlawful; but, on the contrary, is referred
to in every page of chapter 9 as an undoubted right. And Mr.
Vattel mentions, also, in what way pillage may be fully justified—
namely, as retaliation and reprisals ; and he states it to be entirely
in the discretion of the authorities of each belligerent to decide as
to the nature and extent of such retahatory measures. I proposed
to place before your Honor evidence, proving that the mode in which
this war has been carried on by the Federals was such as to afford
the fullest justification of the retaliatory raid now under consider-
ation, but your Honor rules it out, and [ tnink rightly. For I hold
that if the act be done with the authority, express or implied, of the
Confederate States, its propriety is a question beyond your juris-
diction. But ample evidence of it is nevertheless not wanting in
those records of daily events which constitute the history of this
war. ‘The extract I read yesterday from the ‘‘ Rebellion Record,”’
shows how the United States wage war. But there has been some-
thing more then this. ‘The Federal Legislature has passed an act,
. A
yy the
at we
ad us
a
Vattel
t con-
person
he dis-
covers
r what
mpt to
do. I
ry must
reats of
enemy,
ction 1s
to seize
nemy 13
ercising
ed upon
1 friends
the pil-
of pro-
brisGuers
d them:
pnemy 18
referred
nd Mr.
tified —
entirely
ecide as
roposed
n which
o afford
onsider-
Yr I hold
i, of the
br juris-
nting in
of this
ecord,”’
n gsome-
an act,
417
by which the entire property of the subjects of the Confederate
States has been confiscated. I shall read from the speech of Mr.
Crittenden a few senteness, which admirably amen > tl . ne
extraordinary piece of levislation : cay eee
7 Ht You propose the confiscation of all the property of rebels, thei
‘ aiders and abettors. What is the number of people who woul the
“ included in the proscription? whom would that include ? AIL ho
have paid taxes, all who have made contributions to su : ‘hie
rebellion ? all who have taken up arms, or all who he ee
aid and comfort te those who have taken up arms in sae her
the rebellion ?. How many would that leave ? The exce yaaa
be but very few, if you consider who are the pHncaale. ni i
the aiders and abettors of this rebellion. Here are te Ss > :
7 and by your law of confiscation you proscribe man nee
oa T ue whole history of mankind does not furnish aa a
‘ e it. ae a proscription was never before issued by any
7 aay tae pee re plague, no pestilence, which ever ie
ang pon mankind has ever wrought such mischief az this
So that so far, therefore, from denying the rig i
toseize the property of another, the Gated Settee a Mr Cae ae
shows, have actually confiscated the whole of ihe rivat nner
of every man, woman, and child in the Csneilomts State ae ed
will was worthily executed by Montgomery in his ine into
Darien; and the devastation, the pillage, the destru ries hich
have made a desert of the Shenandoah ‘Valle ould : t b yeas
balanced by thousands of such raids as that an St Alb ie
therefore, it were necessary to show that the attack on St. Alb e
was a fair measure of retaliation on the part of the C f ieee
Government, we could do so without difficulty. But re es
spectfully submit that this question is not before our H or TE
the Confederate States had a right to give see for a 2
pedition at all, it is not for us, nor for your Honor ae ‘a e
or gaa was a proper occasion on which to exercise that waht "
ee Res disposed to pursue the discussion of this point T think
could follow my learned friends through the books th }
cited, and show that in every instance the dissection I re feo
contending for is enunciated by the authors they cite i ee
strongly those writers may advocate the carrying on of Ses
see Bee ites oll oat that it ought to be waged in this
at, agree that it 1 i j
themselves to decide in what way ee ieee cones
meade ny if one party does that which the ne of 7 be
scognise as lawful, the only remedy i i iati
Unless, indeed, the persons sohially oe a
BB
nw~anwanene
wan we nr #
4e
¢
n~
418
unlawful expedition are actually captured by their enemy, in which
case, they will be lable to be treated in any manner that enemy
may think proper, and the injury they may have done can be
avenged by retaliatory acts, in the discretion of the injured party.
It is only in these modes that the laws of war can be enforced, or
tieir violation punished. ‘Thus, if the prisoners had been captured
in the United States it would have been for that Government to
say how they should be dealt with. They probably might have
been treated as guerillas, perhaps as spies ; tried by drum-head
Court-martial, or shot or hanged on the spot, without any form of
trial.
Before leaving this subject, I wish to refer to the point suggested
by Mr. Johnston, as to the distinction between lawful and unlawful
war. Mr. Johnston, in his argument, insists that this act was not
lawful war; he cites from Judge Talmadge and Judge Cowen
to sustain his pretension; and he refers to Vattel on the same
point. I find it difficult to seize his exact meaning in this—and
think he has misapprehended the jurists he quotes. ‘Their discus-
sion was upon what constituted a lawful state of war; not as to
what was a lawful act of hostility between belligerents. And he
applies the instances Judge Talmadge gives of incursions which do
not constitute a lawful state of war, to the present case, to prove
that it was not a lawful act of hostility. Judge Talmadge does not
discuss the question whether or no an unauthorized incursion by a
small party of men of one nation into the territory of a neighboring
nation is in itself lawful war, there being no war beuween the two
nations ; because it is beyond discussion ; it is not lawful war. But
ne examines what constitutes a state of lawful war, or perfect war,
and holds, as Mr. Johnston properly states, that acts of a cer-
tain character are required to constitute lawful war. But the way
in which my learned friend reads and applies these authorities can
only be appreciated by quoting from his speech. He says; “on
‘¢ the question whether the circumstances proved in this case clothe
‘* the transaction with the character of lawful war, it is to be observed
‘that Judge Cowen and Judge Talmadge, his critic, both agree.
‘¢ ¢'To warrant the destruction of property, or the taking of life,’ says
“¢ Judge Cowen, ‘on the ground of public war, it must be what is
“ called lawful war by the law of nations.’ ‘ All will agree,’ says
“¢ Judge Talmadge in his review, ‘ that the war which affords impu-
‘‘ nity to those engaged in it, must be a lawful war.’ Vattel 13, 3,.
“© ¢, 4, sec. 67, says: ‘A war lawful and in form is carefully to be
‘ distinguished from an unlawful war entered on without any form,
“ or rather from those incursions which are committed either without
‘ lawful authority, or apparent cause, as likewise without formalities,
‘+ and only for havoc and pillage.’ There is no mistaking the mean-
SE aR
ie Pe spine
hich
emy
n be
arty.
d, or
tured
nt to
have
-head
rm of
rested
lawful
as not
owen
, same
—and
discus-
as to
nd he
hich do
. prove
oes not
m by a
iboring
he two
. But
ct war,
a cer-
1e Way
es can
5; “fon
> clothe
served
agree.
, says
vhat 18
’ says
impu-
13, 8,
/ to be
form,
ithout
alities,
mean-
410
‘ing of this language. If the prisoners seek irresponsibility here,
ee they must show at least that they had lawful authority for what
‘they did. The act of war they invoke to shield them must be a
lawful act by the law of nations.’
I think there is no mistaking the meaning of this lan-
page. But it certainly does not. mean what he infers from
; he evidently applies these citations to the act of those
men alone, and not to the nature of the war now being carried on,
to which that act was incident. Now, I say it is plain that Judges
Talmadge and Cowen were discussing the doctrine of immunity
from responsibility to municipal law, which they held applied only to
acts committed in a lawful war ; and the passages Mr. Johnson
cites, refer to the position of two nations with regard to each other.
When Judge Talmadge says that impunity is only afforded to those
“engaged in lawful war,” he obviously uses the phrase as
descriptive of the position of the nation to which such persons
belong. And when Vattel speaks of incursions committed without
cither lawful authority or apparent cause, he refers to incursions
by individuals or parties of men, made while the nation to
which they belong is at peace with the one which they invade,
and made without the authority of their own sovereign.
find these “ incursions” italicized in the report; and therefore
infer that my learned friend cites this passage as appropriate to
the St. Albans case. Now, a single glance at the text would have
shown that those incursions only ¢ are “spoken of, which take place
when there is no war. The question Judge Talmadge j is discussing
is this,—Is there a state of lawful war or not ? and he quotes from
Vattel to show the distinction between a war lawful and in form,
and mere incursions without commissions and without authority. It
is perfectly plain that he does not mean incursions incident to a
lawful war, but incursions independent of any war. ‘The instances
he gives of the Grandes Compagnies of France, and of Filibusters,
sufficiently establish his meaning. Now, what does this authority
establish ? Simply that there may be a state of lawful war between
two countries ; or that there may be incursions into a country in time
of peace, by men without commissions or authority, which does not
constitute lawful war. But neither Talmadge, Vattel, nor Cowen,
says that a hostile incursion, by a party from one country, into the
territory of another, in time of war, 1s of itself an unlawful war
or an unlawful act of hostility. My learned friend’s authority,
therefore, is totally inapplicable here, because a state of lawful
war does exist; and his pretensions that incursions incident to
such a state, are unlawful, cannot be sustained for a moment.
Such a doctrine is not to be found in books, is not consonant with
reason, and is inconsistent with every principle to be found laid
120
down on the subject, either in the opmion of Talmadze, or in
any other authority.
As to this question of lawful war, there are just two or three
more authorities to which I will refer, as establishing the position
I contend for. In Vattel, page 391, in the note it is said :
* As nations are independent of cach other, and acknowlege no
es superior, there is, unfortunately, no sovereign power amonz
“¢ nations to uphold or enforce the international law 3 no tribunal
“* to which the oppressed can appeal, as of right, against the
“¢ oppressor ; and, consequently, if either nation refuse. to give
* effect to the established principles of international law, the only
*‘ vedress is by resorting to arms, aud enforcing the performance
“of the national o blizations, and this is the principle of just war.
In additicn, L will cite a few words from Hautefeuille, page 161 :
At page 151, he says: “* Sur mer comme sur terre, le belligé-
* rant a le droit absolu de nuire & son ennemi par tous les moyens
‘* directs qui sont en son pouvoir, et sculement par les moyens
* directs ; il n’y a done aucune distinction a faire &v eet égard
“entre le droit maritime et le droit terrestre.” At page 162:
“ Chez aucune nation, dans aucun temps, il n’a existé une loi, un
‘usage qui, sur terre, exempte de la confiscation les propriétés
‘¢ privées de lennemi. * * * Quant aux propriétés mobiliéres,
‘‘ elles ne sont pas plus respectées a terre que sur mer. Sans
‘* parler des pillages autoris¢s par les usages de toutes les nations,
‘¢ dans toutes les guerres terrestres, méme dans celle de 1854, qui
“ fut dirigée avec tant de modération et d’humanité, les propriétés
** privGes de l’ernemi furent prises et détruites par Jes troupes
‘* ennemies.””
I think that is a tolerably clear exposition from one of the most
modern continental writers on the subject of the rights of parties
in war. The conclusion I draw from these authorities is this,—
that the terdency of modern rules of warfare is to restrict the
effects of war to soldiers in the field ; but that this does not affect
the abstract rights of the belligerents, who are the sole judges of the
means they are entitled to employ in carrying on the war.
But judging from the care with which my learned friends next
point was elaborated, and the vehemence w'th which it was urged,
they rely greatly upon it for the success of their application. —
‘They say that the prisoners were guilty of a breach of neutiality ;
and the consequence they draw from it is a curious one. They
accuse these men of having infringed our law. ‘They also accuse
them of having committed in the United States, an offence which
the authorities there consider an act of robbery. The prisoners
say they are belligerents,—that they acted under a commission ;
and more than that,--had direct authority for the act. The learned
ain
ree
tion
> no
ont
unal
the
give
only
ance
9)
ar.
LOL:
ligd-
vens
yyens
soar
162:
1, un
“ss, P7
metes
eres,
Sans
tions,
5 qui
ese,
brietes
roupes
most
arties
hhis,—
st the
affect
of the
5 next
urged,
on.—
ality ;
They
Lccuse
which
koners
sion ;
arned
<a
421
gentlemen opposite reply,—supposing all this to be true, you have
committed a crime avainst the law of Canada and Great Britain ;
therefore you must be extradited and punished in the United
States for the crime committed there, although, if you had not
violated our laws, you could not have been so extradited. That
is the proposition they present to the Court.
Mr. Bethine.—I never stated so.
Mr, Abbott.—Not in that form; but that is the sense of your
argument. I feel convinced that every one who hears me will say
that it must assume that form, otherwise it is of no value at all.
Because a breach of neutrality was committed by those men, they
have lost the character of belligerents ; they have invalidated the
authority given them by the Confederate States ; they have forfeited
all the rights of Confederate subjects and soldiers. This is the
position which Counsel on the other side assume.
Smith, J.—The proposition put by Mr. Bethune and the other
Counsel on that side is this: that the prisoners, although belligerents
in their own country, yet, having sought an asylum in Canada, have
thereby lost that character. hat, being here, they planned and
executed an expedition into the United States from this country ;
and returned afterwards to Canada. And the conclusion drawn
from this state of facts is simply this, that they cannot do any bel-
ligerent act at all. That any attempt to do so, is so far unlawful,
that it cannot | > protected by the law regulating belligerent rights.
Mr, Bethune.—Thit is our position precisely.
Mr. Abbott.—That is one of their positions. ‘The Counsel opposed
to us say that by seeking an asylum and residing in Canada, these pri-
soners lost their belligerent quality ; that as a matter of fact they
ceased to be belligerents, and could not carry out any belligerent
enterprise against the Northern States, of whom they were the
enemies by birth and by their commissisns. But there is also
another proposition which they submitted to the Court. There can
be no possibility of escape from it, for a great portion of their
authorities are intended to apply to it; namely, that because the
prisoners violated the neutrality of this Province, and thus commit-
ted an unlawful act,—and my learned friends opposite cited a great
man* °uthorities to prove that an incursion from a neutral to a
belhgerent country was an unlawful act,—the extradition of the
accused, if demanded, should be granted.
Mr. Johnson.—Not for this act, but for another act. All we
contend for is this—that you are setting uv here an answer to
otherwise proved felony, and that vou do not prove it to be a law-
ful answer.
Mr. Abbott.—Not for this act, but because thie act accompanied
or preceded the act for which ex:radition is demanded.—That is
42
”)
~
just what [insist the other side are contending for. They argue
that because these men made this raid, as they. say, from ( ‘anada,
they committed an unlawful act, inasmuch as they broke our neu-
trality ; that because they committed an unlawful act guoad us, the
United States are entitled to have them extradited, as this unlawful
act deprives them of the protection our courts would otherwise afford
them against the United States. It is impossible to state the proposi-
tion in any other way. A large portion of Mr. Johnson’s speech is
directed to this view; and in it he actually speaks of our govern-
ment being unable to overlook the fact that the enterprise was,
to some extent, planned and directed here. And he proposes
to shew the sense our government has of its dignity, and its mode of
regarding an offence against itself, by urging that very offence as a
eround for handing the offenders over tu a foreign country for pun-
ishment. ‘That is virtually the proposition both of my learned friends
for the crown, and of those for the United States. They have cited
authorities to prove that the engaging in a hostile expedition from
a neutral territory is unlawful. Here again I am able to agree
with their authorities, but must utterly protest against their appli-
cation, I admit that such an expedition is unlawful as regards the
neutral. It is undoubtedly illegal to organize and carry out a hos-
tile incursion from our country juto the United States.” But they
have to go a step further, and shew us the consequence of that un-
lawful act. What is the effect of its illegality ? Of course I do
not admit, except for the purpose of this argument, that there was
any breach of our neutrality ; but, Isay, supposing that the case waich
my learned friends put, be established in the clearest possible way ;
suppose that those twenty men organized at St. Johns, armed them-
selves there, thence crossed to the United States and made their
attack on St. Albans, Mr. Young being, at the time, at their head,
—taking this hypothetical state of things, the prisoners undoubtedly
did what was illegal guoad us; they were guilty of a gross outrage
upon us; and their Government, if they authorized it, committed an
offence against Great Britain, and gave her the right of demanding
apology and redress, and also of punishing the offenders if found
within her burders. So far as I have now stated the law applicable
to this supposed state of things, my learned friends’ authorities
exactly confirm my views. But my learned friends insist that there
are further consequences attached to this act of disobedience to our
laws, and that they, as representing the crown and the United States,
have aright to make that disobedience an argument for extradition.
Now [assert and shall presently prove, that the United States Govern-
ment have nothing to do with that breach of our laws—nothing what-
ever to say in the matter; and that it does not rest within her rights
to say before a court of law, that Great Britain must enforce the
423
Argue
nada,
neu-
8, the
lawful
afford
‘Oposi-
ech 1s
overn-
. was,
poses
ode of
peas a
r pun-
friends
e cited
n from
aurec
-apph-
‘ds the
a hos-
t they
nat un-
se I do
re was
waich
e way 5
1 them-
e their
r head,
ibtedly
utrage
tted an
anding
found
licable
orities
t there
b to our
States,
hdition.
;overn-
» what-
rights
ce the
law which prohibits such proceedings. If she las any such
right at all, it is merely a right of remonstrating with the
Government of Great Britain. But she has no right before our
courts to prosecute such an offence, still less to urge it as a reason
for handing our criminals over to her for punishment. The ques-
tion is a very simple one for us. The prisoners have violated our
law; and they are charged with another offence to which their
belligerent character is a good defence. Are we to refuse them
the benefit of that defence because they have offended us in
another respect ¢ I insist that we should adopt the proper con-
stitutional remedy; punish them for the crime they committed
here, in the mode authorized by our laws and as they justify us in
doing. And I hope it may be a long day, either in this or any
other matter, before we refuse to exercise our proper constitutional
authority ; or become so degraded as to deliver over men in the
position of the prisoners, to their natural enemies, for a mock trial,
as a mode of vindicating our honor and dignity. Such a course
might avenge us, but it would be grossly unjust and dishonorable.
Contrary therefore to the pretensions of my learned friends, |
submit as a proposition which it is utterly impossible to get over,
that a breach of our Jaw has no bearing whatever upon, or relation
to, the act done at St. Albans. It is that act and that act alone,
which the United States have 2 right to complain of. ‘They can
only demand the extradition of these men, because, on a certain day
they assailed, pillaged, and attempted to burn, a town of theirs,
twenty miles from our border. Their demand for extradition must
rest on this alone, and not upon anything that took place in our
country, either before or after the raid. In short, it is not because
these men committed misprision of treason against Great Britain,
that they are liable to be delivered over to the United States for an
act committed in their territory.
The pretensions of my learned friends in this behalf do so shock
all my preconceived ideas of law and of justice, that I think I may
properly call for an authority, if there be one, which declares, that
because an act of hostility committed by one belligerent within the
territory of another, is complicated with the breach of the neutrality
of a third nation, the belligercnts offending against the neutral
nation, are thereby deprived of their rights as belligerents quoad
their enemy. We have had a good many citations, it is true,
but they stop far short of this pretension. ‘Those Mr. Bethune
submitted on this point, had reference to captures in maritime war
‘fare, made either in neutral waters or directly from such waters,
the capture as it were taking its inception in neutral waters; and
he cites them to show that such captures are unlawful. Here,
again, strange to say, we agree about the abstract law. I admit
424
that such captures are unlawful in one sense ; that is, they are void-
able, but not absolutely void. But do his authorities show that the
persons making such captures, were ever held amenable as pirates
for the captures so made? If these authorities sustain him at all,
they must go that length. If they do not, they are worthless to him.
If the violation of neutrality committed by such a captor, takes away
from him his belligerent character, and reduces him to a mere
pirate, subject as such to the municipal law of the country from
which he made the capture, then the authority is in point; and the
prisoners, in like manner, will be converted by the effect of a breach
of our neutrality, into mere robbers, liable to be extradited and
tried in Vermont. But the mere statement of such a monstrous
notion of law should suffice to refute it. In reality, is there
a case, a dictum, or an opinion stated in any work that has been
referred to, tending to show that, because such a capture was ille-
gal and would not vest any title in the captor, that captor was a
mere pirate? Or that he could be made amenable in any way to
the courts of the power whose property he had been taking as his
prize, or be delivered up to such power for any such trial? Is
there anything which establishes that position? My learned
friend Mr. Johnson laughs; but I ask him to cite some book in
favor of such a view.
Mr. Johnson.—It does not slow that I am laughing at you.
True, there is no case in which a party has been so demanded, be-
cause it was an act of maritime war; but in case of robbery or for-
gery, would the party not be given up ?
Mr. Abbott.—My learned friend’s laughing is of no consequence,
of course, further than as I understand it to express dissent ; and if
he does dissent from what I am now saying, I ask him again to
cite an authority, or book, or opinion, justifying such dissent; and
I suppose my learned friend wil! have no difficulty in doing so, if
there be any such. However, he does not; but admits that there is
no case in which a belligerent making a capture, declared illegal
because made in neutral waters, was ever demanded by the
other belligerent. But he says this is maritime warfare in which
the rules are different. Well, this is one of the particulars in which
my learned friends differ a little in their views of the law. Mr.
Devlin cited authorities proving that there was no difference
between warfare at sea and on land.
Mr. Deviin.—The very opposite ; there is a difference between
them.
Mr. Abbott.—It is possible it may have been Mr. Bethune who
cited it ; certainly, one of them did.
Mr. Devlin.—Denied it.
Mr. Abbott.—On reflection I am certain that Mr. Devlin cited
> void-
iat the
pirates
at all,
to him.
$ away
, mere
y from
nd the
breach
d and
nstrous
3 there
3 been
ras ille-
‘was &
way to
x as his
i? Is
learned
book in
at you.
led, be-
or for-
quence,
; and if
gain to
its and
g so, if
there is
illegal
by the
which
which
Mr.
Herence
etween
e who
cited
an authority showing that robbery by land, and piracy at sea were
the same; while Mr. Bethune quoted another to prove that different
rules governed operations by land and by sea. And I could turn to
both of them in my notes, if it were worth while. But in reality a
reference to either Vattel or Halleck, which appear to be the books
most frequently cited on the other side, will show that the prin-
ciples applicable to these two kinds of warfare are exactly the same ;
although in the case of warfare by land, the abstract right of
plunder and pillage is restricted in practice, while at sea it
prevails in full force. And the quotation just made from
Hautefeuille is preciscly to the poimt. In fact, as the other
learned gentleman put it, piracy and robbery are convertible
terms ; the one being the same offence by land that the other
is by sea. Mr. Johnson admits that there is no case in which
it has been held that the captor in such mstances as I have
spoken of, and as his authorities refer to, was held punishable
as a pirate by the municipal tribunals of the other belligerent.
There is not only no case of this kind, but the possibility of
such a thing has never been hinted at in any book. On the
contrary, in the very books cited by the other side, it is laid down
authoritatively, that the injured belligerent has nothing whatever
to do with the matter; that the belligerent of whom the ship was
unlawfully captured, has no right to say one word on the subject.
It is the neutral alone who deals with it, and he does so to vindicate
his own dignity and sovereignty. It is he who says, you shall not
come within my borders, and use them as a vantage ground from
which to make war on my neighbor. And if you do, I will not
acknowledge the validity of your capture, and will force you to
restore it. The man who makes the capture is not liable to be
punished by the authorities to whom the property belongs, nor can
their complaint against him be listened to in the courts of the neu-
tral. It is not at their suit that the capture may be annulled by
reason of its illegal origin; for that illegality does not concern
them.
The Court here adjourned for an hour, and at 2 o’clock Mr.
Abbott resumed :
I proposed, when we adjourned, to examine how far the authori-
ties cited by the Counsel for the Crown and for the prosecution,
sustain the position they have taken, with regard to the effect
of the alleged breach of neutrality by the prisoners, upon their acts
at St. Albans. The authorities quoted in support of their view
certainly are to the effect, that an incursion from a neutral State
into the territory of another is unlawful, but but they go no further.
They cited Mr. Wildman, who says in distinct terms that captures
within neutral territory, or made by expeditions proceeding from
426
neutral territory, are illegal, which is the precise doctrine my
learned friends rely on. ‘* But,” “he adda, ‘ not with respect to
the enemy.”
The citations from Azuni, Burlamaqui, Wheaton, Phillimore,
and Kent, are all to the same effect.
This, then, is undoubtedly the correct doctrine, and it cannot be
disputed. ‘I'o set the matter at rest, I admit, in the words of these
citations, that ‘ hostilities cannot lawfully be exercised within the
territorial jurisdiction of the neutral state’? (Wheaton 713) ;
that ‘* captures made by the belligerent cruisers within the limits
of a neutral state are illegal’’—that they are illegal also if the
expedition which makes them “ proceeds from neutral territory ;”’
that ‘‘ no proximate acts of war are in any manner to be allowed
to origmate on neutral ground :” “ that every voluntary entrance
into neutral territory, with hostile purposes, is absolutely unlaw-
ful.’ Ido not think I have omitted one proposition of law to be
found in all the authorities cited on this point, and for the third or
fourth time I find myself receiving my learned friends’ views of the
Jaw, absolutely as axioms, which I have neither the ability, nor the
(lesire to dispute: but demanding again and again ; suppose the law
is as they state it, does it bear out their application for extradition? I
say it does not, and I contend that all their authorities in this connec-
tion fall far short of any such pretension. See, for instance, the case
of an illegal capture made in, or from, neutral territory. ‘The conse-
quence of such a capture is that the prize courts declare the capture
null, and order the property to be restored. But not that the par-
ties who made it are guilty of any offence against the belligerent,
because they made a capture in neutral waters ; or that therefore
they must be held to be hostes humani generis. I venture to say that
no suggestion can be found, of the possibility of a doctrine of this kind
being entertained by eny nation. But if the capture be interfered
with, and the property be ordered to be returned, it is not because
of the injury to the belligerent. It is only in virtue of a complaint
by the neutral, of a violation of its sovereignty by the offending bel-
ligerent, that the capture can be annulled. It is the neutral power
alone which can interfere to procure the return of property captured
within its jurisdiction; and the only recourse a belligerent nation
has against a neutral for permitting the violation of its neutral jurisdic-
tion, 1s to call its government to account for so doing; and to make
the refusal of satisfaction a casus belli, if it thinks proper.
Chancellor Kent states the doctrine very clearly on the page
next after those cited by my learned friend on this point. He
says (Vol. 1, p. 121). ‘It belongs solely to the neutral govern-
“ment to raise the objection to a capture and title, founded on a
‘* violation of neutral rights. The adverse belligerent has no right
‘ine my
spect to
limore,
nnot be
of these
thin the
713) ;
e limits
o if the
ritory ;”’
allowed
entrance
y unlaw-
aw to be
third or
ws of the
, nor the
e the law
ition? I
s connec-
, the case
he conse-
e capture
the par-
ligerent,
therefore
b say that
this kind
terfered
because
romplaint
ding bel-
al power
captured
t nation
jurisdic-
to make
he page
int. He
| govern-
ded on a
no right
427
“to complain, when the prize is duly libelled before a competent
“Court. If any complaint is to be made on the part of the eap-
“ tured, it must be by his government to the neutral government,
‘6 for a fraudulent, or unworthy, or unnecessary submission to a
“¢ violation of its territory ; and such submission will necessarily
‘¢ provoke retaliation.”
The whole of the discussion in the three or four preceding pages
of Kent, which my learned friends opposite cited, has reference
to the effect of the capture of a vessel within the limits of the neu-
tral jurisdiction, in so far as regards the transmission of the title to
the captured ship, or effects ; with regard to the neutral—not with
respect to the belligerent. The belligerent is not stated to have
our right to find “fault with the proceedings of his enemy,
to demand, that the capture should be declared illegal. But
singly: that. the capture within the neutral territory, is illegal
quoad the neutral power, and that the latter may vindicate its
sovereignty by refusing to acknowledge the validity of the title
claimed to have been conferred hy” that capture; and may
order the restitution of the property to the belligerent from
whom it had been taken. The learned Counsel opposite quoted
also copiously from Halleck. But the passages he cites are merely
repetitions 5: he doctrines already cited from ‘ Wheaton” and
“ Kent,” au the very words of those authors. I must say
that I fail t- © »-eive the advantage he proposes to gain from
them—for in every case they state the consequence of such
illegal violation of neutral territory, and that consequence never
bears any semblance to the one he seeks to draw from this. For
instance at page 520, General Halleck speaks of the difference
between the asylum which ships may obtain in neutral ports, and
that which troops are entitled to. And this distinction was read to us
with great unction. But in what way does it aid my learned friend’s
view ? It is not there stated, that when refuge is sought within
the borders of the neutral, by belligerent troops, those troops are
to be arrested and handed back to their enemies. But it is
laid down that the neutral is to insist upon their being disarmed ;
upon the booty being returned, and the prisoners released. I find
nothing here declaring that those troops are to be treated as robbers,
and handed over to the ordinary municipal courts for punishment,
which is the remedy my learned friends desire to sanction by this
authority, if they have any object at all in quoting it. I find also
among these citations from Halleck, ample confirmation of my
view as to the exclusive right of the neutral to make a violation of
neutral territory a ground for annulling a capture; at which the
Counsel on the other side made many signs of dissent when I
stated it. It is laid down distinctly at p. 531, * on the principle,
428
“‘ that the neutral state alone has Leen injured hy the capture,
‘¢ that the hostile claimant has no right to appear for the purpose of
* suggesting the invalidity of the capture.” Aud he says that it
is the right and duty of the neutral to restore booty captured in
violation of neutral rights, if it comes into -the possession of the
neutral state. But the reference to p. 629 of Halleck is more
surprising than any I have yet seen. He there lays down the suffi-
ciently simple rule that if a neutral neglects or refuses to maintain
the inviolability of its territory, it is a casus bell’.
Mr. Bethune.—I cited that in support of the proposition, that
if you were to maintain that an act of this kind was legal, it would
be equivalent to an act of war against the United States.
Mr. Abbott.—It is a fallacy, which I have repeatedly exposed, to
argue that your Honor must either hold that these men acted legally,
or order their extradition. ‘The two propositions have no relation
to each other. ‘The rejection of the one has no bearing whatever
upon the rejection or acceptance of the other. The question is not
whether or no they acted illegally here ; nor can it be, unless it be
shewn that the legal consequence of illegality is extradition.
Would they not have acted illegality if they had committed larceny,
or swindled? ‘Then would my learned friends say, you must
approve of the larceny, or you must extradite them? ‘The whole
question is whether or no they committed robbery in St. Albans ;
and holding that the offence they committed there was not robbery
is surely not ‘equivalent to an act of war against the United
States.” There would seem to me to be a strange confusion of
ideas running through all this argument. Breaches of neutrality,
the ordinary criminal law, hostile incursions, the powers and
duties of Courts, and the powers and duties of ‘Governments,
seem to be all jumbled together in inextricable confusion. If
my learned friend had said that the sanction of the British
Government to acts of this kind would be a casus belli, I
could have understood him ; but when he speaks of your Honor’s
decision as to the character of these men’s acts, examined with
reference to a special statute, as beirg an act of war, I confess
my entire inability to appreciate his view. ‘The matter seems to
me very simple. Every belligerent has the right to demand that
a neutral State shall maintain the inviolability of its territory. And
every neutral State acting honorably will endeavor to do so. But
how? By extraditing men who violate its neutrality, to be dealt
with by their enemies; or by indicting and punishing them itself ?
Is there a nation in existence that has cver stooped so low as to
deliver over to foreigners for punishment, ofenders against its own
laws? If we are bound to maintain the inviolability of our neutra-
lity, and I say that we certainly are ; in God’s name Iect us do so.
> capture,
purpose of
ays that it
aptured in
ion of the
k is more
n the suffi-
0 maintain
ition, that
l, it would
‘xposed, to
ed legally,
no relation
> whatever
stion is not
inless it be
xtradition.
ed larceny,
you must
The whole
‘t. Albans ;
ot robbery
he United
onfusion of
neutrality,
owers and
rernments,
fusion. If
he British
s belli, I
ir Honor’s
ined with
I confess
r seems to
mand that
ory. And
bso. But
o be dealt
hem itself ?
low as to
ast its own
bur neutra-
us do so.
Fc fee Se
OOS RR
eee
Sree erg
cies
429
And we are doing so. We have taken means, and at great expense
to this country too, to maintain our neutrality inv iolate. And this
incursion and the capture of the Philo Parsons have been made
the occasion for doing so. We have taken the most energetic pre-
ventive measures in our power; we have passed extraordinary laws,
giving to the Government extraordinary powers, in aid of our other
cflorts, and moreover we have under our laws provisions under
which those who commit such acts can be punished. Not by extra-
diting them, but by submitting an indictment against them to the
Grand Jury now sitting. as my friends opposite ‘should have done,
if they thought them guilty of a breach of our neutrality ; in order
to their punishment here; not by leaving our sovereignty and
our authority to be vindicated by our neighbours.
Mr. Carter.—The law officers of the crown do not require to be
told what their duty is in this matter. we never pretended any-
thing so absurd as that parties could be extradited for a mere
breach of neutr ality ; but for committing two offences, a breach of
our neutrality and another offence.
Mr. Abbott.—t do not pretend to dictate to my learned friend
what his duty is, but I find that in the books it is laid down as a prope-
sition of law, as a constitutional maxim, as a doctrine comporting
with the dignity of a sovereign State, that if a person be found
within its limits charged with two species of crimes,—one com-
mitted within, and the other beyond its borders; he must first
be dealt with for the offence committed within its own jurisdiction,
before being handed over to a foreign State to be punished for the
crime committed there. I tell them that such is the law of this
Empire. And I say, that if they argued in England that these
men were deprived of their right of asylum, and should be
extradited because they committed a breach of our neutrality ; or as
the learned crown officer puts his most extraordinary proposition—
because they “ committed two offences, a breach of our neutrality
and another,” they would be told—if you pretend they committed
a breach of neutrality they must be committed for trial for that,
before we can hear a demand from a foreign power for extradition
for any other offence. And that is British law, and it is in accord-
ance with British spirit, and British feeling. That is the law,
whatever this government of Canada may think on the subject.
Mr. Devlin.—That has nothing to do with the case.
Mr. Abbott.—That is exactly my opinion. No such principles
or sentiments have had anything to do with the conduct of this case.
But, returning to the point under discussion, I shall refer to an
authority of some value. I cite 2nd Ortolan, 299 and following
pages where he says :
430
Tillégalité des actes d’hostilités exercés dans les eaux terri-
“ toriales d’une puissance neutre, entraine, comme conséquence
‘ direete, lillégalité des prises faites en dedans des limites de ces
‘eaux.’ And after citing the passages from Wheaton already
referred to, expressing the same doctrine, he adds :—‘“* Nous adhé-
‘* rons complétement a cette doctrine et a cette jurisprudence pra-
‘i tiques, * 7"
Here, of course, the rule is asserted which my learned friends
opposite have contended for with such vehemence, namely, that
the violation of neutral territory is illegal. But what is the conse-
quence’ I shall read this passage as exhibiting it:
‘ Puisque la nullité des prises ainsi faites n’est rien d’absolu,
‘qwelle est subordonnée aux réclamations de lEtat neutre,
‘le fait est remis a l’appréciation de cet Etat. C’est a lui 4
“ juger sil y a eu, ou sil n’y a pas eu, véritablement atteinte
“‘ nortée & sa souveraineté ; s'il doit & sa propre dignité et aux
“ obligations Vimpartialité que lui impose sa qualité de neutre, de
‘“‘ réclamer contre cette attcinte et de demander que les consé-
‘* quences en soient annulées ou réparées, ou bien s’il peut garder
‘“‘ le silence et n’élever aucune réclamation.” And at page 229,
in speaking of the exercise by the neutral of its right to return
illegally captured property if found within its jur isdiction, he says:
‘“‘ T] ne faut pas croire qu’en cela I’Etat neutre se renile j juge de
“Ja validité ou de la nullité de la prise, au point de la querelle
‘“‘ des belligérants, et des lois qu’ils doivent observer dans leur
‘¢ guerre maritime. Cette question est entiérement hors de son
‘ ressort. Mais si des actes d’hostilité ont eu lieu illégitimement
‘* dans les eaux qui sont soumises a sa souveraineté, il est en son
‘“* pouvoir de faire cesser les effets de ces actes; en usant de ce
‘* pouvoir, il ne fait que maintenir son droit, que preter main-forte
‘“* & sa propre cause.”
M. Hautefeuille promulgates a similar doctrine, Vol. I, at pages
d04, 880.—
But I think it is possible for us to find examples nearer home, which
will shew how far the violation of neutral territory affects the act of one
belligerent against the other. We can find recent precedents both in
America and in England, which settle the question in the sense in
which I understand it. We are all familiar with the fate of the
‘‘ Florida.” Now, she was captured while actually under orders as
to her cruise against the Federals, from Com. Barron, the diplo-
matic agent of the Confederate States, at Brest. I hold in my
hand the letter, written and dated in Brest, in which he gives
minute and detailed directions to Lieutenant Commander Chas. S.
Morris, of the Confederate States Navy ; he then being also in
Brest, with his ship; as to the latitudes he is to cruise in, the period.
ax terri-
équence
s de ces
already
us adhé-
nce pra-
| friends
ly, that
1e conse-
’absolu,
neutre,
a lui a
atteinte
‘et aux
‘utre, de
3 consé-
t garder
uge 229,
o return
he says :
juge de
querelle
ans leur
s de son
imement
st en son
nt de ce
ain-forte
at pages
e, which
ct of one
s both in
sense in
e of the
rders ag
e diplo-
H in my
he gives
has. 8S.
also in
e period.
431
during which he is to remain in one place or another, his conduct
towards neutrals ; and winds up by ordering him, in case of doubt,
to recollect that his chief duty is to do all the injury he can to the
enemies of h's country.
These are instructions issued to the commander of a Confed-
erate States steamer, then in a neutral port; by a Confederate
States agent, then resident in a neutral port. ‘This steamer was
afterwards illegally captured by the United States war steamer
‘¢ Wachusett,” in the neutral port of Bahia. And these instruc-
tions from Com. Barron were found on board of her. A remon-
strance was immediately addressed to the United States Govern-
ment by the Brazilian Government, complaining of the gross
violation of her neutrality committed by making this capture;
whereupon a species of apology was made by the United States
Government. ‘The ‘ Florida,” in the meantime, had been sunk
and could not be restored, but her officers and crew were
released, and sent, I think, to England. Now, supposing it
to have been a violation of neutrality for Com. Barron to issue
orders for a cruise against the commerce of the United States,
while he was resident in France ; which occupies the same position
that England does toward the belligerents—how is it we never
heard a word of complaint against Mr. Barron from the Govern-
ment of the United States, nor any demand upon the French Govy-
ernment that he should be sent out of France? He has never been
interfered with for his conduct in this respect, and still resides in
that country. ‘The position of Mr. Barron in France, and of Mr.
Clay in Canada, appear to have been exactly similar, and what
they did was exactly the same thing. And if there was a violation
of neutrality in the one case, there was in the other. But what is
more to the purpose of this argument; how is it that Capt. Morris
was treated as a belligerent? My learned friends would say, his
expedition was authorized in neutral territory, it proceeded from
neutral territory, (the ‘ Florida,” in fact, never saw any other),
and it was thereby deprived of all character of lawful hostility. If
the St. Albans raiders lost the character of belligerents, because
they, or some of them, at one time or other passed through, or came
from Canada; how is it that the officers and crew of the Confede-
rate cruiser were not treated as pirates, because they started from
France and received their orders there ?
If my learned friend’s pretensions are correct, the Florida was a
pirate ; and her officers and crew could have been tried at Bahia
and hanged, as hostes humani generis, without rendering it necessary
that the United States should incur dishonor, and submit to humi-
liation, for the privilege of destroying her. If the principle con-
tended for by the opposite Counsel be correct—that the reception
432
within a neutral territory, of orders for a hostile expedition, takes
from that expedition the character of lawful hostility, and from
the parties engaged in it that of belligerents; then Morris and his
crew were as much pirates as were Young and his party robbers.
And we may go still farther. If a capture by a belligerent in neutral
territory is illegal in the sense in which my learned friends say it is,
namely, so that the belligerent character of the captor is destroyed
—and so that he becomes liable as an ordinary robber or pirate
to the municipal tribunals of the country; then the captain and
officers of the Wachusett were guilty of piracy for their capture of
the Florida in the harbour of Bahia. There 1s not on record in all
the cases cited by my learned friends, so gross a breach of neutra-
lity as that committed by the Wachusett ; nor is there a case in the
books, which so compl tely exhibits every element of illegality in its
most glaring form. And no one denies that it was illegal. But
would any one in the face of the world have assumed the position
that because of that illegality, the Wachusett’s people were deprived
of their character as belligerents ? The pretension would have been
received with ridicule by the civilized world—and yet it rests
fully and squarely on the proposition of law my learned friends are
insisting upon.
But we have other cases in which such questions have come up,
equally conclusive in their results. There is the case of the Patriota,
in which United States citizens were concerned in the year 1817.
This was a vessel built in the United States, then strictly neutral,
with American money—-manned by citizens of a neutral state, and
neither she nor they ever saw the country on whose behalf she was
cruising as a privateer, namely the revolted Spanish Colonies. She
captured a Spanish vessel on the high seas, and complaint was made
to the American Government by the Spanish Minister. Here was a
flagrant case of violated neutrality—and the persons engaged in it
were exactly in that position, which my learned friends contend
would justify Young’s extradition. If the doctrine be correctly
expounded to us, they were pirates—they had no belligerent char-
acter, for if they ever possessed any, they lost it by illegally origi-
nating their expedition in neutral territory. The correspondence
is in my hand and I will read enough of it to shew its purport.
(Reads Correspondence from New York Albion, October, 1817).
So that it appears the American Government found nothing
which deprived those men of the position of belligerents, though the
vessel was built in an American port, was owned by American
citizens, and manned by an American crew. ‘There was no charge
of piracy made by Spain, nor would the United States have listened
to such a pretension. The position they took was simply this—if
these men come within our jurisdiction, we will punish them for
n, takes
11 from
and his
robbers.
neutral
say it is,
estroyed
r pirate
ain and
pture of
rd in all
neutra-
se in the
ity in its
ll. But
position
leprived
ive been
it rests
ends are
ome up,
Patriota,
r 1817.
neutral,
ate, and
she was
s. She
as made
re was a
red in it
contend
rorrectly
nt char-
ly origi-
ondence
ort.
1817).
nothing
bugh the
merican
b charge
listened
this—if
hem for
433
breach of neutrality; and we will restore the goods if they fall
within our power. ‘ That is all the universal law of nations de-
mands of us,” says Mr. Adams.
In the late English cases; those of the Gerity and the Roanoke ;
we find no such doctrines as those urged by my learued friends op-
posite. It was not argued there, that because the party who seized
the Gerity went on board at a neutral port, and because the expedi-
tion originated there, Ternan and his party were pirates, or that
their character as belligerents was affected by that circumstance.
Nor was such a pretension urged in the case of the Roanoke,
whose captors also entered the vessel at, and sailed from, a neutral
ort.
Mr. Bethune.—The captors of the Gerity embarked at Mata-
moras, but never touched the vessel till she was on the high seas.
Mr. Abbott. —So in this case, the captors of St. Albans entered
the American territory at the Province line, but never touched the
person or property of a Federal till they arrived at that town. As
regards the Roanoke, the Gerity, and the St. Albans raid, the
principle is the same, as far as the alleged breach of neutrality goes.
If it be said that the captors of the Roanoke and Gerity were upon
quast American territory—when they were upon an American ves-
sel; the prisoners had to pass through twenty miles of American
territory before they reached the scene of attack.
But surely it will not be contended, that the St. Albans raiders, by
invading American territory from Canadian ground, were placed in a
worse position, as regards belligerency, than if they had been actually
British subjects. And I say, that if they had actually been British
subjects, they would have had a right to make this incursion,—not
quoad their own sovereign, by whom they would have become liable
to punishment for a breach of neutrality ; but as regards the other
belligerents.— British subjects taking part in this war do so at their
peril, as regards their own laws, but they do not thereby become
liable to be treated as robbers or pirates. In the debate in the
House of Lords on the Queen’s proclamation, in 1861, Lord Derby,
with Lord Brougham and other law lords, took particular pains to
point out that British subjects in the service of the Confederates
would not be liable to be regarded as pirates. And the declarations
ot these statesmen and lawyers were most clear and most positive,
that no view of the law which the United States might take, and
no enactment they might pass, would be regarded by the Bri-
tish Government as justifying any pretension, that British subjects
under such circumstances could be looked upon as pirates. So it
seems that even a British subject would be entitled to the protec-
tion awarded to belligerents, if taken while acting under the
commission of one of the contending parties, though liable to pun-
cc
43
ishment by us for so doing ; and, if so, a fortior’, aman who was not
a British subject, and in fact had not even acquired a domicile here,
would be entitled to all the immunity which his national and belli-
gerent character could afford him. This point is specially referred
to by Chief Justice Cockburn in the Gerity case. He says: “I
concur in thinking that persons so acting, (with the intention of
acting on behalf of one of the belligerent parties), ‘‘ though not
subjects of a belligerent state, and though they may be violating the
laws of their own country, * * * cannot be treated as pirates.’
There is no possibility of getting over this express dictum of the
Chief Justice. For if they are not pirates, they are belligerents.
If they were deprived of their belligerent character by having vio-
lated the laws of neutrality, or by : reason of any other fact, "they
would be mere pirates—or robbers, as the case might be. But J udge
Cockburn declares they are not pirates on tha* account. In the
Chesapeake case, the same doctrine is laid down by Judge Ritchie,
as I have shewn by the citations made at an early stage of my
argument. So your Honor perceives that the Chief J ustice of Eng-
land in the one case, and Judge Ritchie in the other, did not con-
sider that a breach of neutrality, though committed by a neutral ;
though the offence in him is more flagrant than in a foreigner ; and
though his committing it might expose him to severe punishment ;
would alter his position guoad a belligerent, so as to entitle the
latter to treat him as a pirate or robber.
I will close this branch of the subject, by citing a few passages
from ‘“ Historicus,’’ who treats this very point in a manner that
can leave no doubt of its true bearing upon the mind of any one.
At page 149 he says: ‘There are no questions which at the
present time more deeply engage the public mind than those which
concern the rights and duties of neutral governments, in their rela-
tions with belligerent powers. * * * Among these is the nature of
the relative rights and duties which may arise, as between the re-
spective parties, out of a violation of the rights of neutrals by one
of the belligerents.”” Again at page 150: ‘ The elementary and
universal principle which lies at the root of the whole question, is
the absolute title of the neutral sovereignty to immunity, whether
as regards its territory or its prerogatives, from the interference of
belligerent operations of any kind. A violation of this immunity
is one of the clearest and highest offences against public law. For
one belligerent to pass through the neutral territory without the
leave of its Sovereign—to carry on hostile operations within the
neutral jurisdiction—to levy soldiers or sailors, or to equip vessels
of war within the neutral soil—are familiar instances of violation of
the rights of neutral sovereignty. ‘They are acts eminently unlaw-
ful, and the neutral goverment is entitled to prohibit, and, if neces-
as not
> here,
1 belli-
ferred
yp: OT
tion of
ch not
mg the
rates.’
of the
erents.
ng vio-
t, they
Judge
In the
Ritchie,
of my
of Eng-
ot con-
eutral ;
or; and
hment ;
itle the
assages
er that
r one.
1 at the
which
Pir rela-
nture of
the re-
by one
ary and
tion, 1s
hether
but. the
in the
vessels
htion of
unlaw-
neces-
435
gary, to avenge their commission.”” Again at page 151: “ To
levy men or to equip armaments within the neutral jurisdiction is to
convert the sanctuary of neutrality into the theatre of war. Such
proceedings are, therefore, upon both grounds in the highest degree
unlawful , municipally as between the Sovereign and the subject,
internationally as between the offending belligerent and the offended
neutral. * * * Every State passes laws to protect itself, and not to
protect other nations. It is for this reason that the English Go,yern-
ment has constantly refused to enact laws, either penal or otherwice,
at the instigation of other Governments, who suggested that the,
inight be essential for their security. The object of the statute book
in these matters is to prevent foreign nations injuring us, not to
protect them one from another.’ Again at page 152: “ So far
the matter is clear enough. A difficulty, however, hegins to arise
when we come to consider the relations which this violation of the
neutral sovereignty creates, as between the neutral, and the other
belligerent who may have been indirectly injured by that violation.
Upon this point I have come across a great deal of loose and inac-
curate talking and writing, which makes it desirable and necessary to
ascertain and establish the strict law of the case. The fundamental
proposition which I wish to impress on your readers’ attention, (the
importance of which I shall presently show) is that the right which
is injured by the act of the offending belligerent, is the right of the
neutral government, and not that of the other belligerent. The
important consequ-.ce of this proposition is, that it ¢s the neutral,
and not the belligerent, who is strictly entitled to claim or to enforce
the remedy. When this point is once properly apprehended, the solu-
tion of the question becomes simple and satisfactory.”” Again at page
154: “ But perhaps the most instructive illustration is to be derived
from the practice in the case of captures made by a belligerent in
violation of neutral rights. A capture made within the limits of the
neutral jurisdiction zs void, but zt 2s void only at the suit of the
neutral. If the neutral does not choose to interfere to assert his
right, the capture is valid as against the other belligerent. In
short, the capture is not void, but voidable at the election of the
injured party, viz: the neutral state—a distinction the importance
of which every jurist will appreciate.”
Such quotations as these explain themselves. They are at once
text and commentary. ‘They shew the precise bearing and
effect, of the violation of our neutrality by these prisoners, if any
such violation has taken place, which, it is well understood, I utterly
deny. They shew that such violation does not render them liable
to be regarded as robbers ; and that if the Federals claim to have
been injured by their acts, they can only seek reparation for that
injury from the Government, and not from the Courts. If, as Mr.
436
Harcourt tells us, no foreign power has a right to complain before
our Courts, of acts affecting our neutral “rights, then all the
arguments based on a breach of those rights, by which the
Federal Counsel here have sought to induce your Honor to extra-
dite these men, must go for nothing. They can receive no consi-
deration when urged “by the representatives of a foreign state.
‘They have no right to use them; they are not injured, but we ;
our neutrality laws are “ made to protect, not them, but us.’? Who
is it then who argue for the extradition of these prisoners because
they have violated our neutrality % or if they are particular about
phrases, who urge that the violation of our neutrality by the pri-
soners has rendered them liable to be extradited? It is our own
Government; the Government of this country, in which these men
have sought an asylum; which sends its officials here to insist that
because these men have violated our laws, (as they say) they are
to be held liable to extradition, though otherwise, as belligerents,
they would be entitled to protection. It is the Crown officers who
come here pretending a kind of impartiality, but in the same
breath declaring it to be their duty to use their best endeavors to
have these men extradited. And in the performance of that duty
it is they who would deny to them the protection of their commis-
sion; who would deny to them even the right of exhibiting it;
although the Sovereign they profess to represent, has solemnly pro-
claimed the right of these men to those privileges. It is in the
name of our Sovereign, who recognizes the belligerent character of
the Confederates, that your Honor is asked to deny to these Con-
federate soldiers the rights of belligerents! And it is in the name
of that Sovercign, whose laws they say these men have violated,
that they ask you to send them to a foreign country to have that
violation avenged. Itis the first time that the name of the Sovereign,
and the honor of this country have been so desecrated and degraded,
and I fervently hope that it may be the last.
If I were to examine this case from another point of view, I
believe I should not have much difficulty in shewing that the
Treaty could not be held to apply to these prisoners, regarding
them as rebels and therefore as political offenders engaged in an
act of treason against the sovereign pewer of the state.
Mr. Devlin. —'They were soldiers when they commenced ; now
they are politicians.
Mr, Abbott.—I believe insurrection and rebellion are usually
regarded as political offences. ‘The rule that political offenders are
not considered to be comprised within the provisions of extradition
treaties, has already been laid down as one of the propositions on
which we rely, and has been sustained by the citation of numerous
authorities. I will refer however to the reasons for this exclusion,
before
all the
ch the
> extra-
0 consi-
1 state.
yut we ;
> Who
because
ir about
the pri-
our own
ese men
sist that
hey are
gerents,
‘ers who
1e same
ayvors to
rat duty
commis-
iting it;
nly pro-
is in the
racter of
se Con-
he name
violated,
ave that
verelgn,
graded,
view, I
that the
garding
red in an
d; now
usually
ders are
tradition
itions on
umerous
clusion,
437
which I find given with great foree and clearness in Sir George
Cornewall Lewis’ little treatise. Mr. Johnson correctly stated that
the propriety of agreements for extradition, rests on the presump-
tion of an impartial trial in either country. Sir G. C, Lewis uses
this theory as a reason why extradition should never be extended
to political offenders. Ile says:
*“* Tf all Governments were perfectly equitable and dispassionate,
the principle might safely be applied to political offenders ; but
‘in the prosecution of political offences, the Government may be
‘¢ considered as an interested party, and therefore another Govern-
‘¢ ment is indisposed to give up persons charged by it with crimes
‘¢ of this description.”
And he points out that in cases of ‘ civil war,” of ‘ revolu-
tion,” &c., extradition is refused by any State ‘which does not
fear the displeasure of the Foreign Government interested in the
question.” And he quotes with approbation Lord Palmerston’s
declaration that a Government conceding it, would ** be deservediy
and universally stigmatized as degraded and dishonored.” .
While referring to this book I must notice an extracrdinary ase
which my learned friend Mr. Johnson has made of it, and 1 am
glad he is here while [ speak of it. Ile quotes it at page 52, in
support of his pretension that a Judge should not fully investi rate
the charge before granting extradition ; and he finds the au‘nor to
agree so thoroughly with him, that he quotes a large part of the
paragraph : ‘“* What then,” he asks, “is the duty of the magis-
trate 7’ I give his own answer entire.
‘Sir Cornwall Lewis (he says) puts it thus clearly and expli-
citly: ‘In order to render a system of extradition effectuel, the
amount of proof, and the formalities required, should be as smail as
is consistent with the prevention of abuse. ‘The essence of the sys-
tem is, that confidence is reposed in the foreign government and in
its administration of criminal law. The assurance of that govern-
ment ought to be the chief guarantec against abuse. If, therefore,
it claims any fugitive through the accredited diy'omatie channels,
and gives a reasonable proof that there has bec: — proper inyesti-
gation by the officers of police, and the functionaries conducting the
preliminary stages of judicature, and that this investigation had led
to the conclusion that the person in question is guilty of the offence
charged against him, it is desirable that t'.¢ extradition should take
place, upon proof of identity of the party, and without any full in-
vestigation, such as a magistrate would make for the commitment
of a prisoner in this country.’ ”
And again he says: ‘ ‘The recognition of the criminal law of a
foreign state, and the confidence in its regular and just administra-
tion, which is implied in a system of extradition thus carried into
438
effect, is paralleled by the established practice of this and other coun-
tries with respect to the civil law.’’
“Tn fact,” he says: “ the rule, thus clearly stated, has been
allowed in practice wherever questions under the Treaty arose.”
I have quoted this at length, otherwise it would appear to be
ineredible, that the ‘rule thus clearly stated,” which ‘* has been
followed in practice wherever questions under the Treaty arose’
—is actually the statement made by the author, of what the law and
practice are not,—the same paragraph containing a directly contrary
statement, which he declares represents what the law and practice
are. ‘This explicit description, which Mr. Johnson cites as exhibiting
in the words of Lewis the condition of the law ever since the Treaty
came into force, happens to be a description of what Sir G. C. Lewis
thought ought to be the law, but which he clearly states in the same
paragraph is not the law. The passage cited by Mr. Johnson is
the latter half of a paragraph, which, in the previous portion of it,
refers to the Ashburton Treaty, and explicitly finds fault with the
necessity for proof under that ‘Treaty, and for an investigation
before a magistrate by means of witnesses examined on the spot.
And after pointing out all that is requisite under its terms, and
declaring tnat the process is both costly and difficult, he goes on
to shew how he considered such a law ought to be framed, and zt
ts this expression of his idea of how the law should be changed,
that Mr. Johnson cites with such approbation, and with the autho-
rity of Lewis’ name, 18 a clear statement of what the law actually is !
So extraordinary a perversion of authority is not easily accounted
for !
But returning to the distinction between ordinary crimes and
those of a political character,—as for instance, those arising out of
a civil war,—I have been very forcibly struck with the illustration
of it by Mr. Lord, a distinguished advocate in New York, who
who was one of the Counsel for the defence in the Savannah case.
He argues that to constitute a crime against municipal law, an act
must be such an one as everybody condemns, and is recognized by
all the world as an offence against the law of nature,—an offence
which would be punished equally at the place where the crime was
committed, and where the party was tried for it. And he points
out that it would be shocking to the common sense of mankind to
hold that an organization of ten millions of people could not justify
even the killing of a chicken without a charge of petty larceny ;
that for every shot fired and man killed there could be a trial for
murder, &e., &e. (Reads from Savannah case, pp. 121 et seq.)
And in fact there can be no doubt but that the prisoners are regard-
ed throughout the United States as political offenders. The evidence
of record shows that they were such, if offenders at all. But there is
coun-
been
» 9
to be
been
‘ose ’
vy and
trary
ictice
biting
reaty
Lewis
same
son 18
of it,
h the
ration
spot.
5, and
es on
ind zt
nged,
utho-
ly is!
inted
and
but of
ration
who
case.
nact
vl by
fence
was
oints
d to
ustify
ny ;
bl for
)
ard-
ence
re is
pe
439
kind of universal publicity and notoriety given to the fact through-
out the United States, which has its value. We know that in the first
official notice of the attack, which is to be found in the celebrated
proclamation of General Dix, they were spoken of as * rebels,” —
as “rebel marauders:” and orders were given to shoot them
down wherever found. The placard issued hy the St. Albans
banks designates them in a similar manner. Every newspaper in
the Union, and every Federal organ here, made their nationality
one of the grounds of complaint against them. Mr. Sumner, i
wis place in “the Senate, recognized ‘the political character of the
expedition, insisting that its real purpose was to embroil England
with the Federal States; and the chief law officer of the Crown
for Upper Canada, while so far forgetting himself as to state in his
place in the House his opinion on this matter, although it was then
under investigation before your Honor ; attributed the greatest
blame to the persons who, with political views, had laid the plot
which the prisoners had carried out. The universal clamor in
the States against this country, for the alleged breach of
neutrality, rested entirely upon the political character of the
incursion; for if it had not that character, it was no violation
of neutrality—it was a common robbery. Ordinary robbers do
not rise to the dignity of violators of neutral rights. And it
will even be found, that in the discussion of the application of the
prisoners for permission to send to Richmond for evidence, His
Excellency the President of the United States, himself charac-
terized them as rebels. Assuming it to be true, then—as the whole
press of the United States, her generals, her senators, even her
highest and most august executive officer declare it to be with one
voice—that these men are rebels, who, on the 19th of October last,
were engaged in an act of rebellion against the State to which they
owed allegiance ; I respectfully submit that your Honor must hold
that to rebels secking refuge here from the consequences of rebel-
lion, the Extradition “Tre: ity does not apply.
But my learned friend Mr. Johnson, fearing, perhaps with
justice, that it may be found at least doubtful that any case has
been made out against the prisoners, on the charge of having been
guilty of robbery within the meaning of the Treaty ; reproaches
them with the inconsequent character of the defence they set up,
in hopes, probably, of persuading them that they should submit to
be hanged, rather than to be saved by erroneous ratiocination. He
says, ‘ The position of these men is absurd and illogical in the ex-
treme: they say they have an excellent defence; are able to jus-
tify this raid by the authority of their Government ; that their act
was a belligerent one, and not liable to the municipal law of any
country, yet they do not wish to go to the United States and
440
be tried !’? And the other Counsel have touched, more or less, upon
the same theme, extolling the justice of the United States Courts,
and assuring your Honor of the perfect impartiality with which the
prisoners would be tried. Now, I would like to know what kind
of trial these men could really expect in the Federal States. I
admit that the Courts in the United States have long been eminent
alike for their purity and impartiality, for the learning and ability
of their Judges, and for the practical sense and vigor of their ad-
ministration of justice. ‘They probably still deserve the same high
character and position as to all matters unaffected by political con-
siderations ; but I must be pardoned if in those respects, I am led
by report to fear that their ermine is not without stain. But with-
out casting upon them any imputation of any kind, it is probable
that they cannot fairly try the defence set up by the prisoners.
In other words, could the prisoners’ defence be recognized as good
in law before the Federal Courts, supposing it to be fully proved ?
Mr. Carter has furnished us with the means of answering this question.
The authorities he cited to show that we could not recognize Lieut.
Young’s commission, tell us, that it belongs alone to the executive
Government of a country to decide whether or no a State shall
be recognized as a belligerent, or as a sovereign State. Well,
the executive Government of the United States have not recognized
the Southern States, either as a belligerent or sovercign State ; and
consequently the Federal Courts cannot recognize their commis-
sions, or consider the acts of their soldiers as belligerent acts. My
learned friend, Mr. Carter, will not deny the force of this argument ;
for as he contends that your Honor cannot look at this commis-
sion, though England has recognized the belligerent character of
the Southern States; he must join me in this argument and say, a
fortiort, the Federal Courts cannot look at this commission, because
the Federal Government has not so recognized the South. ‘This is
one of the instances in which the “ plain,” ‘ incontrovertible,”
and ‘* obvious’? propositions of my learned friends are recip-
rocally rather injurious; and are likely to share the fate of other
elaborate but fragile productions, when brought in rude contact
with each other! It can, in fact, be established that a plea of
belligerency, and of justification by instructions from the Confede-
rate Government, would not be rec: ved as a lawful defence before
any tribunal in the United States; and that proof of it would be
utterly unavailing. Ifsuch a defence were set up to any of the
charges which may be made to arise out of the attack on St. Albans,
a Judge in the United States would hold it insufficient in law, and
would so charge the jury.
Mr. Devlin.—How do you know that ?
3, upon
Jourts,
ich the
t kind
es. I
minent
ability
eir ad-
ie high
al con-
am led
it. with-
robable
soners.
is good
roved ?
lestion.
Lieut.
ecutive
e shall
Well,
yenized
e; and
ommis-
s. My
ment;
ommis-
cter of
say, a
because
This is
tible,”’
recip-
f other
contact
plea of
nfede-
before
uld be
of the
Ibans,
Ww, and
RK e.
“aE
441
Mr. Abbott.—By the report in my hand of the ruling of Judge
Nelson of New York, in a similar case. On the trial for piracy of
the officers and crew of the schooner Savannah,—a privateer cruis-
ing under a letter of mresue from President Davis,—the same
defence was set up as ti:at under which these prisoners claim to
justify their acts, and upon which alone they must rely to save
them from conviction and execution as robbers. In charging the
jury, as to the validity of that defence, Judge Nelson says :
‘* We have said that, in a state of war between two nations, the
‘¢ commission to private armed vessels from either of the bellige-
‘‘ rents, affords a defence, according to the law of nations, in the
‘“* Courts of the enemy, against a charge of robbery or piracy on
“the high seas, of which they might be guilty in the absence of
such authority ; ; and under this principle it has been insisted, by
the learned Counsel for the prisoners, that the commission of the
Confederate States, by its President, Davis, to the master and
crew of the Savannah, which has been given in evidence, affords
“such defence. In support of this position, it is claimed that the
‘** Confederate States have thrown off the power and authority of
the general Government; have erected a new and independent
Government in its place, and have maintained it against the whole
military and naval power of the former; that it is a Government,
at least de facto, and entitled to the rights and privileges that
belong to a sovereign and independe nt nation. * ** But the
Court. do not deem it pertinent or material, to enter into this
wide field of inquiry. ‘This branch of the defence involves consi-
* derations that do not belong to the Courts of this country. It
involves the determination of great public, political questions,
‘¢ which belong to departments of our Government that have charge
of our foreign relations—the legislative and executive depart-
** ments ; and, when decided by them, the Court follows the deci-
*¢ sion ; ‘and, until these departments have recognized the new
“ Government, the Courts of the nation cannot. Until this recogni-
“ tion of the new Government, the Courts are obliged to regard
‘‘ the ancient state of things as remaining unchanged. *** And
‘‘ if this is the rule of the ‘Federal Courts, i in the case of a revolt
‘* and erection of a new Government, as it respects foreign nations,
“ much more is the rule applicable when the question arises in re-
‘¢ snect to a revolt and the erection of a new Government, within the
“Limits, and against the authority, of the Government under which
“we are engaged in administering the laws. And, in this con-
‘ nection, it is proper to say that, as the Confederate States must
“ first be recognized by the political departments of the mother
Government, - in order to be recognized by the Courts of the
‘“‘ country ; namely, the legislative and executive departments, we
66
(73
66
66
442
“** must look to the acts of these departments as evidence of the fact.
‘¢ The act is the act of the nation through her constitutional public
‘* authorities.”
And when the good feelings of the jury, revolting at this, per-
haps strictly legal, doctrine, led them to seek further instruction as
to whether, if they believed the accused were acting in good faith as
belligerents, they might not take that fact into consideration—they
were told that they could not.
I think my learned friend will admit that this shews that I have
not spoken without authority—when I stated the kind of law that
would be administered to these men; and in thus pointing it out I
do not mean to assert that Judge Nelson’s law was bad law, from
his point of view. He has the reputation of being a learned, high
minded, and upright Judge—and very probably was perfectly right
in law in declaring himself unable to allow any weight to a plea of
belligerency, until his Government should have recognized the state
of war. But all this only the more forcibly impresses upon us the
frightful mockery, the ghastly irony of the proffers of a fair trial
to these prisoners. ‘The trial will be fair and lawful according to the
law of the Federal States :—but that law ignores the defence which
those who promise a ‘* fair trial ’’ know is the only one to be set
up. And while they talk of the “ fair trial”’ of that issue, they
know that it has been long ago decided against the prisoners ; and
never can be even presented for sach trial. ‘They tell the prisoners
that it is * illogical and absurd”’ of them, to object to go over to the
Federal States to have their defence of belligerency tried—though
they know, not only that that defence cannot be tried there at all—-
but that it is the only country in the world where it would not be a
full and complete defence to the charge of robbery. My learned
friend blandly remonstrates with the prisoners for their unreasonable
conduct, in not at oce submitting themselves to the impartial and
paternal tribunals of the United States—when in fact those are the
only tribunals in the world which would entirely disregard—as an
absolute nullity in law,—the only defence they possess! I venture
to sa} that epithets much more severe than those my learned friend
has used, are justly due either to him, or to our paternal Government
whose mouthpiece he is—for placing before your Honor, and before
this country, an argument at once so false, so treacherous, and so
inhuman.
But even if it were possible to get such a decision as to the law,
as would admit evidence for the prisoners, how are the witnesses to
be got before the Court? Will escaped prisoner Adjutant General
Withers venture himself in the hands of the Federals? Will Mr.
Stone and Mr. Bettesworth go to St. Albans to tell their Chicago
experiences? Will Mr. Cleary place himself ina New England
he fact.
i public
1s, per-
ction as
faith as
i—they
I have
aw that
it out I
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1 Mr.
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445
witness box, for examination as to the secrets of the department of
State in Richmond ¢ Really, the more [ examine this notion of a
fair trial for these men in the Northern States, the more hollow and
repulsive it appears.
I fear, may it please your Honor, that the very great importance
I attach to this case, not solely in the interest of the prisoners, but
also as involving important national considerations, has led me into
a more lengthy “discussion of it than was required either by its in-
trinsic difficulty, or for the full development of our pretensions. My
object has been, as I stated in the first mstance, to seck to discover
from the evidence of record the whole of the facts as they really
occurred; and then, leaving the propositions of law on which we
relied in the first instance, to rest on the arguments and authorities
of my learned and able colleagues, to follow the Counsel on the
other side through their arguments in reply to those propositions.
That this duty has been long and arduous, necessarily follows from
the fact, that during the greater part of three days, “the ingenuity
and research of four of the leading Counsel at this bar, have been
employed in heaping argument upon argument, and authority upon
authority, in support of the application for extradition, and in oppo-
sition to the pretensions of the defence. And so arduous has it
been, that with the most sincere conviction that we are right, and
the most earnest endeavor to show that that conviction is justified,
I am not satisfied that I os not fallen far short of what [ should
have said in support of i Sut before I leave the case in your
Ifonor’s hands, and even a this late hour, I must entreat your
attention to some considerations which may well incline you to the
side of mercy, if the balance of justice be in any respect doubtful.
The view I desire to submit is one allied to, yet different from,
the merely legal and technical arguments which may be used with
regard to this case. I contend that we have a right to look at the
spirit of the Treaty, and of the statutory enactments based upon it,
—-and that we cannot forget, and have no right to overlook, the
changes which war has produced in the States with which we made
that Treaty, and in our relations with that State. ‘* War,” says
Dr. Phillimore, “ effects a change in the mutual relations of all
“« States ; more immediately and directly in the relations of the
‘ belligerents and their allies ; but mediately and indirectly 1 in the
“ relations of States which take no part in the contest.” And
what enormous and radical changes have thus been effected since
the passage of the Ashburton ‘Treaty! When that ‘Treaty was
passed, we and they were in a state of perfect peace. No prospect
was farther from that great, prosperous, and happy country, than
the hatred, the bloodshed, the military tyranny, the ruin and the
desolation, that have spread themselves over its fairest portions.
~
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444
Peace then presented her most smiling aspect, and no cloud fore-
shadowed her departure. Now, a war rages throughout the length
and breadth of the land-—a gigantic and sanguinary struggle,
in which brother is arrayed against brother, and father against
son. And it is a strife exhibiting war in its most repulsive
features ; war characterized by the “most insatiable rapacity—the
most unbounded devastation—the most lavish pouring out of trea-
sure and of blood, that the earth has witnessed for ages. War is
always a frightful calamity, civil war peculiarly so; but history
gives no account of any war in which such bitter hatred, such
intense hostility, have been developed. And not only men who
have risked and taken life, whose passions are inflamed, and
whose thirst of blood is awakened—but those who usually soften
the asperities, even of ordinary life, now join in the general cry for
confiscation and destruction. Reverend divines, young and refined
females, vie with each other in the fiercest and most demoniacal
demands for ravage and extermination.
Now the ‘Treaty was made to promote the transmission for
trial from one part of this continent to another, of persons who
had committed crimes of the darker class, respecting the char-
acter of which North and South agreed with ourselves ; crimes
which Vermont and Georgia alike prohibited, and which it was
impossible alike for them, and for any other civilized State
or people, to approve of, or even to tolerate. There was,no inten-
tion on the part of the United States, when the ‘Treaty was passed,
to stipmate for the extradition for trial as criminals in Vermont,
of persons who were regarded in Georgia as daring and devoted
patriots ; and for acts which Georgians held to be praiseworthy,
if not heroic. The Northern and Southern States were alike parties
to that treaty through their general Government; they agreed to reci-
procal extradition for the same offences ; ; —and the offences that so
formed the subject matter of their and our agreement, were offences
which they and we united in regarding with abhorre..ce, and as de-
serving of extraordinary exertions for their punishment, in the
interest of our respective communities. Now, what is the position
of these men, and the light in which their acts are regarded by the
parties to that treaty? The Northern States demand them as
robbers. They press this demand with unparalleled vehemence ;
and so violent and unmeasured are they in their wrath, that their
Legislature, their press, and even their pulpits, resound with the
opprobrious epithets which are heaped upon the prisoners. ‘The
Southern States, on the other hand, deliberately authorized and
directed the acts thus denounced. ‘They regard those who parti-
cipated in them as gallant and devoted men, who risked their lives
for their country. ‘Their highest executive officers join in hurrying
loud fore-
he length
struggle,
r against
repulsive
city—the
t of trea-
War is
it history
red, such
men who
med, and
lly soften
al cry for
id refined
Pmoniacal
ission for
‘sons who
the char-
; crimes
h it was
d State
no inten-
8 passed,
Vermont,
devoted
eworthy,
e parties
d to reci-
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offences
id as de-
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position
d by the
them as
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iat their
with the
s. The
zed and
10 parti-
eir lives
urrying
445
off the papers and documents which are to aid in their defence.
No pains, no labor, no risk, no money, are spared 1 in contributing to
their aid and comfort, in ‘the critical position in which they now
stand. In one word, one section of the nation with which we
made the Ashburton ‘Treaty denounces them as robbers, while the
other extols them as patriots. ‘l'wenty millions of men under
an organized Government, demand them as felons; but ten mil-
lions, under another organized government, existing de facto,
claim them as meritorious soldiers. And it was with these ‘thirty
millions of men, then constituting but one community, that we
made our Treaty. Surely if there be all these internal ‘ifferences
of opinion between the parties contracting with us, it is right that
we should carefully consider what we are about to do. It is no
longer the felon sinning against the law of nature, and against
society in general ; respecting the enormity of whose crime no one
doubts ; whom we are asked to deliver over for trial. It is the
soldier of one of these sections, the enemy of the other; respecting
whose criminality there is as wide a difference and as fierce a dis-
pute as exists on any other question debated between these warring
parties: ¢Ais is the man whom we are called to deliver over to one
portion of the nation, against the will of the other, under a treaty
we made with both when united !
These seem to me to be subjects for your Honor’s grave consid-
eration. They are suggestive of much more that might be said,
and much more forcibly said, upon the anomalous state of things
in which your Honor is now called upon to act. But the con-
siderations which arise out of them, personal to the prisoners,
are among the most startling. ‘These men are demanded for trial.
For trial by whom, and how! Is it for such a trial as it
would be presumed an ordinary criminal would have in ordinary
times—when justice is administered in the United States by Judges
second to none in learning and impartiality ;—by juries composed
of educated and independent men; and when the rules by which
they are guided, are the humane and just principles upon which
their and our criminal laws are alike based ? Your Honor knows,
every one knows, that no such trial awaits these prisoners. It is
before Judges like Judge Nelson; who must declare their defence
inadmissible in law; who must decide that the sovereign State of
which they acknowledge themselves the subjects, is not entitled to
their allegiance ; that the President who exercises the civil power
of that State, and the general who commands its armies, are felons
like themselves; that the commission under which their officers,
from the highest to the lowest have fought, and have won the ad-
miration of the world, are mere unauthorised licenses to rob
and plunder—which can serve no purpose but to prove more con-
446
clusively, their liability to a death on the gallows: it is before
Judges who rule thus, that their trial must be had. And before
what country will they seek their deliverance ? It is from amongst
the men whose daily literature is the New York Herald—whose
sabbath instruction is from the lips of the Rev. Henry Ward
Beecher—whose evening relaxations are the lectures of Miss Anna
Dickinson, that the jury which tries them is to be selected ;—those
who daily, hourly, read and hear with approbation, their greatest, best
and bravest, denounced in the foulest and most opprobrious terms—
are to judge of their actions ;—those who echo the fervent aspirations
of the apostles and messengers of Divine mercy and Divine justice
here on earth, for the destruction of these men and their fellows
here, and for their damnation hereafter, are to be the arbiters of
their fate ;—those who listen to and applaud a fragile girl, while
she outrages her sex, her age, and humanity itself, by frantic
exhortations to wholesale slaughter and universal devastation ;
will fill the roll, from which will be taken the twelve men on whose
breath will hang the lives of these prisoners. —And the defence which
they will be expected to investigate, to weigh, and on which they will
have to render their verdict, will actually be the assertion by the pri-
soners of what such a Court and jury are bound by the law, and
constrained by their education, their associations, even their relig-
ious teaching, to look upon as a sure passport to a deserved death ;
as the very head and front of their offending.
Is it to a tribunal thus composed that these men are to be en-
trusted ? Isit from such Judges and such juries that these men
are to receive a fair, calm and impartial trial? Is it before them
that every circumstance is to receive a full, unbiassed, and dispas-
sionate consideration ; as it would do before your Honor presiding
over a Court of this country : or as it would have done before Judge
Nelson, before this unhappy strife commenced? I implore your
Honor well and maturely to weigh these things. I cannot and
will not believe it possible that such a cruel injustice will be done
to these unfortunate men—as to permit of their delivery to their
enemies, with the certainty of an ignominious and degrading death.
I feel that my advocacy of their cause has been insufficient, though
I have devoted to it my best energies; but I know that my defi-
ciencies will be supplied by your Honor’s full appreciation of the
whole case. And in that confidence I leave it in your hands, cer-
tain that your Honor’s decision will be such, as will be dictated by
justice, tempered with mercy.
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447
WEDNESDAY, 29th March, 1865.
Smith, J.—In this case, which is an application on behalf of
the American Government for the extradition of Bennett H.
Young and others, I am now about to pronounce my judgment ;
and in doing so will first briefly state the facts, as they appear
to be proved in evidence before me. In presenting them gener-
ally, without entering at this moment into particuiars, or into
those special points in the evidence, which have relation to the
particular objections that have been raised; I would state that
on the 19th of October last, Bennett H. Young and his asso-
ciates, being in the town of St. Albans, State of Vermont, rose
upon the people ; took possession of the banks ; pillaged them; set
fire or attempted to set fire to several buildings ; took and held a
number of the citizens as prisoners, during the occupation of the
town ; seized upon horses for themselves ; and were, finally, fired
upon and driven out of the town by the people ; exchanging shots
with them, to an extent which does not clearly appear by the evi-
dence—after having been apparently in some degree in posses-
sion of the town for about half an hour. One man was shot in
the street, but under what circumstances does not appear. On
this occasion, a man named Breck came into the bank, upon his
own business, and was seized upon, threatened with violence, and
thereby was obliged to surrender the money he had in his pos-
session. ‘I'his is the act charged as robbery for which extradi-
tion is demanded. The applicants say, that their case rests on
municipal law; they allege that Young and his associates have
committed, according to the law of the State of Vermont, the crime
of robbery; that this offence was committed within their jurisdic-
tion, and is provided for by the ‘Treaty; and that all that is
required for the extradition of the accused is, to show reasonable
proof that the act was one of robbery, which, they contend, they
have done. In general terms, then, these are the grounds on which
the applicants claim from the Government of this country, the sur-
render of these parties for trial. The minor details of the facets,
as proved, having reference to particular points in the case, will
be touched on when those particular points are discussed.
Now, on the other hand, the prisoners state, that the act of
plundering the banks was not rcbbery; that it was devoid of
those elements, which in law constitute that offence; that the
animus furandi was wanting; and that the act charged was
a mere incident of the attack on the town of St. Albans: that
on the 19th October last, Bennett H. Young was an officer in the
army of the so-called Confederate States, holding the rank of first
Lieutenant, under an appointment made by Mr. Davis, of the 16th
June last, as signified to Mr. Young by Mr. Seddon, the Secretary
448
of War ; that the other prisoners Were soldiers in that umy, acting
under hig orders ; and that in the attack on Si. Albans, they
assumed, and declared themselves, to be acting as such Officer and
soldiers on behalf of the Confederate States and by their orders ;
alleging that they were detailed for the purpose, as a measure of
retaliation for the mode in which, they asserted, the war had been
carried on by the United States in the South. That, in fact, the
commission of the So-called raid wag authorized by their Goverp.
ment, and that, therefore, it falls outside the category of cases pro-
vided for in the Treaty, so that they cannot be extradited for it,
because it wants the essential clements characterizing the offence
for which under the name of robbery extradition is promised. N ow,
the statement of these facts and pretensions, in a Seneral way,
makes it quite evident, that the questions of law, which arise on
their examination are in reality few in number, On the one hand,
there is the claim for extradition, in Support of which the municipal
law ig invoked, on the sround that it Tecognizes the act as one of
robbery. On the other, there is the pretension of the prisoners,
Who say, we are not amenable to municipal law ; because though
we committed an act Which falls within the definition of this par-
ticular offence; we dig SO as belligerents, under circumstances
Which remove it from the purview of municipal law; and that
require it to be Judged by the rules of international law, and by
the laws of war. That, in fact, the St. Albans raid was under-
taken in obedience to the commands and orders of our Government ;
that the plunder of Breck was merely an incident to that raid; and
that, t lerefore, it ceases to fall within municipal jurisdiction, To this
the applicants Say, in the first place, that the magistrate who ex.
amines into a case of this kind hag no authority whatever to try such
questions as those raised by the Prisoners ; and they take issue
with them also upon all the allegations of fact involved in their
defence, and "Upon their application under the provision of the
Treaty. | a
There is no doubt Whatever, if tho case stood exactly as it js
presented by the examination of the witnesses for the prosecution,
that it would fal] under the Provisions of municipal law > for the facts
proved by them, so far as they stand unexplained or uncontradicted
by other facts, present a clear case for extradition. But contrary
to th!8 View of the law contended for on behalf of the appellants, T
hold that I am bound to consider whether the prisoners are really
robbel’s ; or, as they contend, soldiers and Subjects of a belligerent,
engaged in a hostile expedition asanst their cnemy, under the au-
thority and on behalf of their Government ; and whether or no the act
charged Was a mere incident to that hostile expedition, And although
T haye 0 right to try this case, it is my duty to Investigate it, so ag
that army, acting
Su. s\lbans, they
8 such officer and
_ by their orders ;
» a3 a Measure of
he war had been
hat, in fact, the
by their Govern-
Zory of cases pro-
xtradited for it,
izing the offence
promised. Nov,
a general way,
, Which arise on
n the one hand,
ch the municipal
le act as one of
f the prisoners,
hecause though
tion of this par-
r circumstances
law; and that
nal law, and by
‘uid was under-
r Government :
that raid; and
iction. To this
Strate who ex-
ver to try such
1ey take issue
olved in their
vision of the
‘actly as it is
prosecution,
; for the facts
1contradicted
Sut contrary
appellants, I
‘sare really
belligerent,
ider the au-
or no the act
nd although
ate it, so as
449)
to ascertain whether or no the offence committed falls within the pro-
visions of the Treaty, before I commit these men for extradition.
Notwithstanding the pretension, therefore, that I have no authority,
as committing magistrate, to receive evidence on these points ; and
that they are questions entirely for the consideration of a jury of
the country where the offence was committed, I have admitted evi-
dence not, technically speaking, for the defence ; because there is
no such thing as a trial before an examining magistrate ; but evi-
dence as a coroner might have admitted it, who must receive what-
ever is pointed out as being calculated to have a bearing on the
enquiry in which he is engaged. On the first point, therefore,
which presents itself, namely, whether on an application for extra-
dition under the statute in that behalf, a judge can receive evidence
tending fully to develop the facts respecting the offence charged,
whether offered on the one side or the other, I entertain no doubt,
and I consider that the ffirmative is fully sustained by authority.
The case of the Gerity, decided by the Chief Justice and a full
bench of Judges in England, has been brought forward to shew that
the contrary view is the correct one. It has been stated that Chief
Justice Cockburn declared, that testimony tending to remove the
imputation of crime from the prisoners, was for the jury alone. I
do not view his dictum in that light; on the contrary, I think his
language demonstrates, beyond the shadow of a doubt, that his
opinion was the cther way. What he really did hold was, that
where there were inere presumptions of a fact, but no posttive
evidence of that fact, it was the duty of the Judge to commit the
parties for trial; and to leave the value of those presumptions
to be estimated by a jury. ‘This is really the doctrine declared
in the judgment of the Chief Justice, and concurred in by his
associates. But is it to be inferred from this, that if proof had
heen offered of the fact, which then rested only on a presump-
tion—and a very feeble one—that such proof would have been
referred to a jury? I think the reverse is the correct inference
from the language of the Chief Justice. The whole of the judges
inferentially admit that if those men had produced a coramission
from Jefferson Davis, they would have acknowledged it as sufficient
to establish their belligerent character. Can it be stated that
anything appears in that case to show, that if Ternan and _ his
associates had presented a commission to the Judges, they would
have refused to receive it, and to give it its full effect, while
they admitted its sufficiency as a justification? There is no
such opinion to be drawn from the report; nor, in fact, could
such an opinion be held by this Bench. In fact, it is
clear that they acknowledge, as regards those men, that the
production of a commission would have justified their act under
DD
450
the law of nations, and that thereby they would have been deprived
of all jurisdiction over them. The argument of Mr. James, wii. i:
was concurred in by the Chief Justice was, that the fact that perso,
acted on behalf of one of the belligerents, was recognized by the
law of nations as a justification, and the possession of a commis-
sion is indicated as a circumstance in the presence of which they
could never order the prisoners to be extradited. They were
finally discharged on another point, though held liable to be com-
mitted upon this one; but that did not affect the position all the
Judges took upon the question now under consideration ; and it is
impossible to deny the logical correctness of their views. How
absurd it would be to say, that if the commission existed and were
acted upon on the occasion complained of, there would be no crime
under the law of nations, and therefore no authority whatever to
commit; and at the same time to affirm that under our own law
the commission could not be looked at at all. A proposition of this
kind, if attempted to be urged before that eminent tribunal, would
never in my humble judgment have received their sanction, for it
wonld involve a total disregard of the law of nations; and would
permit of the violation of the implied restriction of the Treaty stipu-
lations to certain crimes, by allowing it to operate in all cases
which could colorably be brought within its provisions. And to
refer such a point to a jury, would be in effect to hold that the
Courts of the party demanding the extradition, would be the only
tribunal competent to decide whether the proof offered in support
of that demand was sufficient or not. Sir George Cornewell Lewis
says, at p. 00: “ The assumption upon which a ‘Treaty of extradi-
tion rests is, that a civilized system of criminal law is executed with
fairness, and that the cases claimed for surrender are those of
offenders really suspected of the crimes with which they are
charged. If a dishonest and colourable use were made of such a
Treaty ; if, for example, a political refugee were charged with one
of the enumerated offences, for the purpose of bringing him within
the power of his government, and it when he had been delivered
up he was punished for a political crime, it is clear that a system
of ‘ extradition could not be maintained with a government which
‘so perverted the treaty.’ Now, who is to determine whether the
demand is founded on the pretence here set forth, is it the magis-
trate before whom the examination takes place, or is it to be decid-
ed when the person is extradited by the government itself which
asked for the extradition?’ I think this requires no answer. I
fully agree with the remark of Mr. Justice Crompton in the Gerity
case. He says: “ It is said that we must trust to the discretion of
‘* the other State, that it will not demand extradition in cases where
‘‘ it ig unreasonable to do so. But that is very dangerous doctrine,
|
]
n deprived
mes, Wii!
hat perso»
zed by the
a commis-
which they
They were
to be com-
ition all the
13 and it is
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be no crime
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ition of this
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iction, for it
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ns. And to
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be the only
in support
ewell Lewis
r of _extradi-
ecuted with
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whether the
t the magis-
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answer. I
the Gerity
Hiscretion of
cases where
us doctrine,.
451
‘¢ to which I cannot subscribe ; and I think it is far more wise to
‘“‘ construe the act, which is peremptory in its terms, in such a
‘* way, if we can, as to exclude cases in which the demand would be
‘ unreasonable.” (Law Reporter, p. 511.)
Chief Justice Cockburn said——‘‘ As to the other question, whether
supposing piracy jure gentium to be within this act, there was suffi-
cient prima facie evidence of it, I agree in every thing Mr. James
said, as to acts done with the intention of acting on behalf of one of
the belligerent parties ; and I concur in thinking that persons so
acting, though not subjects of a belligerent state, and though they
may be violating the laws of their own country, (ce. g. the laws
of neutrality), and may even be subject to be dealt with, by the
state against whom they thus act, with a rigor which hap-
pily is unknown, among civilized nations in modern warfare ;
yet, if the acts were not done with a piratical intent, but
with an honest intention to assist one of the belligerents, such
persons cannot be treated as pirates. But then, it is not because
they assume the character of belligerents, that they can thereby
protect themselves from the conséyuences of acts really piratical.
Now, here, it is true that the prisoners at the time said they were
acting on behalf of the Confederates, and that, we are told, is in
fact equivalent to hoisting the Confederate flag. But then, pirates
sometimes hoist the flag of a nation in order to conceal their real
character. No doubt primd facie the act of scizing the vessel,
saying at the same time that it is seized for the Confederates, may
raise a presumption of such an intention, but then all the cireum-
stances must be looked at to see if the act was really done pira-
tically, which would be for ajury.”” That is, as I read the judgment,
the mere presumption of facts which alone existed in that cause.
But if a commission had been produced, it would no longer have
been a presumption, but a fact, and as in the case of the Roanoke
at Bermuda, would no doubt have been considered sufficient.
It is because the Chief Justice says that in his opinion this is a ques-
tion for a jury, that the whole of the fallacious argument has been
used, that all cases of the same nature should go to a jury ; when in
fact what was meant was, that as the case for the defence rested on
a mere presumption, and not on positive evidence ; such as a com-
mission ; therefore it was proper to send it toa jury. In fact, when
the Judges heard that the act was declared to have been done in
the interest of the Confederate Government, the Chief Justice
treated that declaration, naked and unsupported as it was, as rais-
ing a quéstion deserving of grave consideration.
Supposing, therefore, that the proof was conclusive that these
men acted under the authority of their Government, what effect
would that fact have, upon the charge that they have offended
@
~,
_—
Pes a nN
ee
SS oe
os
pee eee ere
452
against the municipal law of the other belligerent’ Before dis-
cusing this question of law, however, it may be well to examine
into the nature of the facts proved in this connection, and to see
how far they have established the allegations upon which this part
of the prisoners’ case rests.
There has been a considerable amount of evidence adduced in
this cause bearing upon the position of the prisoners as Confeder-
ates, and in support of their assertions that they belonged to the
Confederate army. ‘This evidence is both documentary and parol,
and appears to my mind conclusive. Without entering in detail
upon the objections taken to a part of it, which appear to me to rest
upon insufficient grounds, and not to bear in any respect the
test even of a superficial examination, I hold that it is proved by
that evidence, that on the 19th October last Bennett H. Young
was an officer of the army of the so-called Confederate States as
First Licutenant, under commission from Mr. Davis of 16th June,
1864; that Young received written instructions from Mr. Seddon,
Secretary of War of the Confederate States, authorizing him
to organize in the territory of the enemy, for special service, a
company of twenty soldiers then beyond the lines; to proceed to
the British Provinces to report to Messrs. ‘Thompson and Clay,
Confederate agents here, or to Mr. Clay alone ; to execute such
enterprises as should be entrusted to him; to violate no local
law, and to obey implicitly their instructions ; that large numbers
of Confederates collected at Chicago in August last to relieve
the prisoners at Camp Douglas; that the St. Albans expedition
was organized there by Young from among the Confederates,
under his instructions from his Government, which he exhibited
then, and as a commissioned officer; that he then reported his
doings to Mr. C. C. Clay, who gave him a memorandum approv-
ing them, and also approving and authorisin:, the expedition against
St. Albans; that tne other prisoners were soldiers in the Conted-
erate army, acting under Young’s orders, and that in the attack on
the town he and his party assumed, and declared themselves to be,
acting as sub-officer and. soldiers, on behalf of the Confederate
States, alleging that they were detailed for the purpose, to retalia-
tion for similar acts committed by the Iederals in the Southern
States ;—these facts I consider and hold to be established beyond
controversy by the evidence of record. Very slight attempts were
made by ihe Counsel for the applicants to assail either the letter of
appointment or commission, or the instructions given, and I am of
opinion that there was no ground for their objections. —
The consideration of the law applicable to this state of facts, in-
volves an enquiry into the nature and interpretation of the national
contract, as between England and the United States, contained in
Before dis-
tO examine
and to see
th this part
adduced in
3 Confeder-
nged to the
rand parol,
ig in detail
yine to rest
espect the
proved by
Il. Young
fe States as
16th June,
Ir. Seddon,
rizing him
| service, a
proceed to
-and Clay,
cecute such
te no local
re numbers
to relieve
expedition
pnfecderates,
e exhibited
sported his
um approv-
tion against
he Conted-
e attack on
‘Ives to be,
onfederate
to retalia-
Southern
ed beyond
pmpts were
” facts, in-
1e national
ntained in
ie letter of
d Il am of
the Treaty, and as expounded by international law,—and it will be in-
structive in this connection to examine a case of a nature not very dis-
similar in principle, perhaps, to the one now before us, which engaged
the attention of the two nations between whom was made this Treat
of Extradition. The case I refer to is that of the Caroline. That
case, as properly understood, is one that settles, beyond all dispute,
the question of governmental responsibility as distinguished from
individual responsibility. The circumstances under which the
United States territory was then invaded, the subsequent arrest of
McLeod, his detention for trial for the crime of ee and the
ustification of that detention by Judge Cowen, gave rise to a long
controversy. Judge Cowen held, that because England and the
United States were at peace, the act of McLeod was incapable of
veing justified by any principles of international law, and that there-
fore the adoption and assumption of the act by Great Britain—
which was certainly no more than equivalent to the previous author-
ization of the act by Great Britain, could not relieve McLeod from
his responsibility to the ordinary municipal law of the state
where the offence had been committed. Other Judges of the Amer-
ican courts, however, refused to concur in the opinion of Judge
Cowen. — Ifis observations and judzment were reviewed by Judge
Talmadge, who showed, beyond the possibility of dispute, that the
views of. Judge Cowen were altogether erroneous and unsustained by
the principles of international law ; ; and they have been negatived by
every jurist of eminence in the United States. But not only was that
ease examined closely by these great Judges, but it was observed
and commented on by great statesmen } and the principles contended
for by Judge Talmi Lilze have been adopted and recognized univer-
sally ; so much go, as to be taught im the schools as indisputable
rules of international law. — If any doubt could be thrown on the
principle contended for in that case by the British Government, how
was it that none of these Judges, nor even the astute and logical
mind of Webster himself, could suggest one ? Mr. Webster -aised
every point which the ingenuity of man could suggest, but Mr. Fox
would never allow him to eseape from this position ; ** the moment
the act was assumed by the Government you ceased to have any
right to examine into it at all, upon a charge against the individual.
[ti is taken out of the jurisdiction of the criminal courts.’” This was
the position taken by Mr. Fox, and he demanded the immediate
ve of MeLeod, ther: held for trial for murder in the State of
New York. ‘T'the case was an extreme one, as it was alleged that
the killing of Durfee took place on American soil after the Curo-
line had been seized, and was not an incident, or rather was not a
necessary incident, to the capture of the vessel,
The © .end Jury found an indictment agaist MeLeod, and he
454
was placed on his trial for committing murder. Now, if this wery
an act which would have fallen within the purview of ordinare
criminal jurisprudence, surely Mr. Webster would have said—the act
this man did is one for which he must be made amenable to the ordi-
nary tribunals of the country, and he must be tried in the usual form,
Surely if this proposition could have been asserted in any case, this
was one in which it could plausibly have been suggested. But he
did not attempt anything of the kind; for he admitted the prin-
ciple that the moment the act was established to be the act of the
Government, the individual committing it ceased to be individually
responsible, and thereby ceased to be amenable to the ordinary
courts, and could not properly be tried before them. But, contrary
to the opinions of Judge Talmadge, of Mr. Webster, and of many
other Judges and jurisconsults before and since, Judge Cowen
denied this doctrine ; and as no statutory law then existed covering
such cases, McLeod was tried before the State Court for murder, in
defiance of the opinions of the statesmen representing the general
Government. This difficulty was overcon.e by subsequent legis-
lation, but in the meantime the trial proceeded--and the acquittal
of McLeod prevented difficulties between the two Governments
which might otherwise have assumed grave proportions. The prin-
cipal point in the McLeod case, therefore, | is the recognition of the
important principle, that the moment an act becomes a national act,
all private jurisdiction over it as regards individual responsibility,
ceases. ‘This ground must be kept i in view in a case like the one
now before us; for without a clear understanding of it, nations
would confound international law and municipal law in an inex-
tricable manner. It would involve an absurdity, to say that there
can be two such jurisdictions of an opposite nature over the same
offence, as the general law of nations and the municipal or local law
of individual nations. It stands as a self-evident proposition that
there cannot be, in the nature of things, two such concurrent
jurisdictions over the same act. ‘The offense must be e¢ ognizable by
the law of nations or by the municipal law ; it cannot be ‘cognizable
by both.
And this rule cannot be evaded by selecting trom an act refer.
able for its approval or censure only to the law of nations, a portion
of, or an incident 1.., such act; and then attempting to subject
such portion, or such incident, to trial by 2 munic’;al tribunal. The
whole of the ‘details and ancidents which, in the ageregate, constitute
a national, or hostile act, must be taken together. It is the hostile act
or operation which I must look at, and not each minute detail of that
act. ‘lo permit any departure from this rule wouldinvolve the gravest
consequences ; as for instance that a general officer wking refuge
in neutral territory after an unsuccessful battle, could be held respou-
,af this wery
vy of ordinare
said—the act
dle to the ordi-
he usual form.
any case, this
sted. But he
tted the prin-
the act of the
e individually
the ordinary
But, contrary
nea of many
Judge Cowen
sted COV ering
or murder, in
x the general
sequent legis-
the acquittal
Governments
s. ‘The prin-
mition of the
1 national act,
responsibility,
>» like the one
of it, nations
y in an inex-
ay that there
ver the same
il or local law
)position that
h concurrent
cognizable hy
be. ‘cognizable
an act refer.
Ms, & portion
ig to subject
ribunal. ‘The
ite, constitute
the hostile act
detail of that
re the gravest
aking refuge
t held respon-
455
sible for every individual act committed as incidents to the fight,
either before or after it, and could be demanded and surrendered for
trial for such act to the criminal tribunals of the country against which
he was making war. If therefore the attack upon St. Albans was an
hostile attack, made by parties acting in behalf of the Confederate
Government—and expressly or impliedly authorized by that Govern-
ment, I must look at the attack itself’ as the act which I am to con-
sider. I must look at the numerous instances which occurred
during its continuance as the elements which in the ageregate con-
stitute the act done by Young and his party—as the firing of all
the alee in an action taken toyether, constitute such action, And
I can no more treat the plunde rof Breck, as being entirely distinct
and separate from the other res yest, than, if the matter came
before me, [ could regard the burning of any particular house in
the Shenandoah V alley by any individual in the Fedral army, as
an isolated act of arson.
That acts cognizable by the law of nations are necessarily free
from liability to investigation, or rather to punishment, by the
ordinary courts, is therefore an important point, admitted by
Webster himself, and sustained by the numerous authorities
on this point that have been cited from the bar. This opinion
was followed in the case of the Avanoke. When the captors
were taken up as pirates on that occasion, they produced a com-
mission from Jefferson Davis as the authority under which they
were acting. Did the Court stop to question it? No; the Judge
stopped the examination, or rather the Attorney-General did so,
He said—this act was committed by one who produces the author-
ity of his sovereign as his justification, His case therefore is no
longer one which can be proceeded with as a robbery for which he
is amenable individually to the ordinary courts ; and the prisoners
were thereupon smmediately discharged. And Earl Russell, in his
despatch on the subject entirely sustains the action of the court
—and holds that the reason given for the discharge was sufficient.
I am aware that it has been forcibly urged for the applicants,
that the offence charged is of such a nature, that it does not fall
within the law of nations, not being of such a character as 1s justi-
fied or permissible under the laws of war; but when [ come to
the consideration of their pretensions in this behalf, I shall
examine the law in reference to them, and see if there be va hae:
that takes this matter out of thelaw of nations ; and if there be not,
these prisoners have a right to invoke the benefit of that law. In
support of the general proposition J have laid down that if the act
complained of be authorised by the Confederate States, individuals
concerned in it ought not and cannot, be held personally respon-
aible in the ordinary tribunals of law for their participation in it, [
Ra a ee ee =
; Roane ees 4
§
ni
|
st
|
f j
456
will cite merely a few authorities: for were I to go over all those
applicable to the point it would take me days, not hours, to deliver
my decision. I refer to Halleck, pp. 804, 5, 6; 1 Opinions of
Attorneys General p. 81; ‘Talmadge’s Review, 26, Wendell, p. 663 ;
Carrington, et al. vs. C. Ins. Co., 8, Peters, p. 522, and Vattel,
Rutherford, and Burlamaqui, who are referred to by General
Halleck sustain, the same view.
And it has been held by Kent, by Chief Justices Spencer
and Gibson, and by Professor Greenleaf. In fact there can
be no doubt entertained on the subject, for no municipal tri-
bunal in any nation in the world could be found to dispute
it. ‘To show how far the principle is carried in England, I will
refer to a case which has been decided there, turning on this point
before the Prize Court in England, and adjudicated upon by one
of the greatest judicial minds England ever possessed,—Lord Sto-
well. In 1801 a case came up in which the title to a ship was
called in question, as having been derived from an Algerine cap-
ture, on the ground that the. Algerines were mere corsairs sending
out their ships to prey upon the commerce of the whole world, and
as enemies of the whole world, were mere pirates from whom no title
to a captured vessel couid be acquired. But the contrary ground
was taken by the court, and it was decided that the African States
being an established Government, and it being a recognised rule of
action of that government to prey upon maritime commeiee though
their notions of justice differed from those of the rest of mankind, still
the title from the Algerines to the captured vessel was good. And it
must be remembered that this decision was rendered agi ainst « British
subject, and a British owner (4 Rob. p. 8, Case of the Helena).
So it seems to be conceded, that a nation notoriously at variance
with all the nations of the world, refusing to admit the principles
which govern civilized nations, but preying on the commerce of all;
could nevertheless secure a wood title for the purchaser of their
capture by a confiscation in “their way. And in discussing this
decision, Judge Talmadge states that ‘+ the same principle of immunity
applies to hostilities upon the land and upon the sea.’’? In the
debate in the House of Lords on the 16th May, 1861, Lords
Derby, Brougham, Chelmsford, Kingsdown, and the ‘Lord Chancellor
all taid down in forcible language the same principle.
“If then the act of these men is a hostile act done un behalf of
one of the belligerents, and therefore a public act in the sense in
which that phra se is used by the learned writers just ‘cited, the
State Courts would be unable to treat it as an offence against their
laws—and would violate their laws if they attempted to do so ; just
as I would be violating the law of my own country if I took up the
matter asa matter cognizable by those courts—which I must do if
[ commit the prisoners.
ver all those
rs, to deliver
Opinions of
dell, p. 663 ;
, and Vattel,
by General
ices Spencer
t there can
unicipal — tri-
1 to dispute
gland, I will
on this point
upon by one
—Lord Sto-
0 a ship was
Igerine cap-
airs sending
e world, and
vhom no title
rary ground
rican States
nised rule of
reree though
iankind, still
pod. And it
ust a British
ie Helena).
at variance
¢ principles
ierce of all;
ser of their
hissing this
f immunity
” Jn the
361, Lords
Chancellor
n behalf of
1¢ sense in
‘cited, the
rainst their
lo so ; just
bok up the
must do if
457
Now a government that exists for the time being, even by usur-
pation, is a government de facto, and is entitled by the law of
nations to the right to make war, and to the other privileges of a
belligerent. Whether the Southern Confederacy is recognized
as a sovereign power or not, it has the character of a belligerent ;
it has the right to raise troops and to do everything in
time of war that an independent government in that behalf can do.
If it violates the law of nations, reprisals and retaliation may be
visited on it. If it does anything wrong it is hable to be
visited with punishment as the law of nations and laws of war
direct.
By these laws no other appeai exists than to the sword, beyond
the moral effect which the opinion of other civilized nations may be
supposed to exercise upon every community. ‘The doctrine is forei-
bly laid down in one of the valuable notes to the translation of Mr.
Vattel’s work at page 301. * As nations (says the amnotator)
are independent of each other, and acknowledye no common super-
ior, there is, unfortunately, no sovereign power among ations to
uphold or enforee international law; no tribunal to which the
oppressed can appeal as of right against the oppressor, and) conse-
quently, if either nation refuse to give effect to the established
principles of international law, the oly redress is by resorting to
arms, and enforcing the performance of the national obligation.
See upon this point also Halleck, p. 75. 2 Azuni,p. 6-4. W heaton,
pp. 18, 21.
Tam undoubtedly bound to apply the principles of the law of
antions to the relation between the contending parties i this war—
and I hold myself so bound, not only by the i lamation of neutral-
ity, but also by the clear principles of the laws of nations them-
selves. I am of opinion that the civil war vow existing between the
Northern and Southern States, constitutes a state of perfect war :
that the Government has recognised fa : an that the parties are
belligerents, and are entitled to ail the rights of belligerents,
and to carry ©: ihe war, gucad the other beiliyerent, as they think
fit. That no neutral could adjudicate, between the belligerents,
as to their manner of making war. And that the authority, express
or implied, of one of the belligerent; to do any hostile act as against
the other in any part of the terr wories of ‘the belligerents, takes
such act out of the range of municipal law, and removes any
responsibility to that law from the individual committing it. I will
therefore now leave this branch of the subject, and “proceed to
another point, in which [ will assume that the laws of war
justified the issue of such a commission froin Mr. Davis as the one
which Bennett H. Young had received, and that IT am bound to
recognize that commission as a document which | may treat as legal
apie mR SE I Ros 55
sata hb ie” rec TRA eser pare nadie
—_
si to ott enim
458
evidence in this case. And this point is one upon which the appli-
cants have dwelt, as being most important to the due decision of
this case.
It has been contended by the counsel, that this is not an act of
war per se, but if an act of war at all, i is only so constructively.
I do not understand this distinction. No author with whom I am
acquainted has ever made it: and it has never, to my knowledge,
heen urged in a court of justice.
Acts of war by the law of nations, are just such acts as the belli-
gerents choose to commit within the territories of each other.—
These acts are done upon the responsibility of the nation, and the
soldiers Suet them can in no way be held punishable for
them. ‘They may be what is termed unlawful acts of war, and
violations of the law of nations, but I, as a judge in a neutral
country, cannot sit in judgment upon them. Being committed
within the territory of the belligerent, there is no violation of our
law: sor can the belligerent ‘invoke their unlawfulness before
me by the international code, reciprocity is ackuowledged by
“i authors to be one of the obligations of belligerents, aud one
av tests of the lawfulness of their acts as against each othe:.
het ver then, is done by one nation to the othe r, Within belli-
territory in carrying on the war, must necessarily be per-
wit" ta the other. Asa matter of act, raids of this deserip-
tign | ve been coustaney permitted ani justified by and on behalf
of the United States? On what principle then can they be denied
to the so-valled Confederate States. However, as far as regards the
violence or unlawfulness of these acts, as a neutral I have no au-
thority to lecide. It is for the belligerents themselves to deal with
these questions ; and where authority, either express or implied, is
given by one belligerent to do the act, it is an act of war for
which alone the belligerent is responsible. These doctrines do not
apply, and never could be intended to apply, to crimes possessing no
characteristic of hostiuty, committed by order of a sovereign in time
of peace and without just cause. ‘There isno analogy between the
cases cited by the counsel, such as the treacherous assassination of an
individual by » hired murderer, and cases of the description now
before me. ‘hey rest upon entirely different grounds. The gene-
ral and abs.ract rule undoul: -dly is, that every subject of one belli-
gerent is the enemy of every subject of the other, and that one belli-
werent may lawfully kill his enemy or seix upon his property
wherever he finds him or it, except in neutral territory. Happily
for the world, of which so large a portion is constantly engaged in
war, civilized nations in modern times have voluntarily imposed
upon themselves rules for their guidance in war, the breach of
‘which exposes the nation which infringes them, to the censure and
vhich the appli-
due decision of
is not an act of
constructively.
vith whom I am
my knowledge,
ets as the belli-
‘each other.—
nation, and the
punishable for
ts of war, and
re in a neutral
‘ing committed
violation of our
vfulness before
knowlodged by
srents, aud one
inst each other.
‘ry within belli-
essarily be per-
of this descrip-
and on behalf
they be denied
as regards the
T have no au-
ves to deal with
s or implied, is
act of war for
octrines do not
'$ possessing no
bvereign in time
y between the
issination of an
escription now
s. The gene-
bet of one belli-
1 that one belli-
his property
ry. Tlappily
ly engaged in
arily “imposed
the breach of
e censure and
459
reprobation of other civilized nations, and to reprisals and retaliation
by the belligerent in respect of which the breach has occurred.
hese abstract or general principles, and the exceptions to them
suggested by the modern rules of warfare, constitute the proposi-
tions established by the authorities cited at the bar on both sides.
For the applicants, numerous authorities have been quoted to shew
that the pillage of private citizens, and the killing of unarmed ones,
are prohibited by these modern usages. For the defence, the
general rules have been cited which recognise the abstract right of
every belligerent to kill or plunder Ins enemy. That pillaging nN
hostile town—which necessarily involves the pillage of the citizens
of that town, is an act in its nature hostile, and which has probably
been done in every war that has occurred since the world began,
cannot be denied—nor that it is within the abstract rights ofa belli-
gerent. It is probably equally susceptible of proof that this species
of warfare is not alluded to. And I may be personally of opinion
that the infringements of these modern usages involved in this ex-
pedition—and if we may credit the public prints, not unusual on
either side in this unhappy strife—are cruel and barbarous and dis-
graceful to the great nation between ha sections they have oc-
curred, But what is the consequence ¢ Can I say that I do not
consider the pillage and burning of St. Albans such acts as are
approved of by the modern usages of war, and therefore, although
undoubtedly within the rights of war, that I will treat the prison-
ers as ordinary felons, and deny them altogether a hostile charac-
ter? Such a proposition is too monstrous to suffer me to entertain
it for a moment.
A very few authorities will establish the correctness of these
views. See Wheaton, pp. 518, 519, O86 et sey., 626, 3 Philii-
more, 115, 116,157. 2 Grotius, (trans.) p- 65. 2 Wildman, &,
10, 24. Vattel, 899, And the distinction is actually clearly laid
down in many of the passages cited for the applicants. For instance,
Vattel, p. 851, being cited; see p. 852, making the distinction.
See also the distinction taken at p. 360, from the doctrine laid
down at p. 859. In p. 859 the distinction is taken in the sentence
adjoining the one cited.
As regards any violation of the law of nations, it is laid down that
if persons engaged in war, but offending against its laws, are captured
by their enemy, they may be dealt with as such enemy may think
proper. If taken within its territories, they may be hanged or shot
after a military trial of the most summary deseription. But it
must be remembered that it is when captured within the enemy’s
territory, and only then, that these persons are liable to be
punished in this manner. But itis pretended that if such persons
are not captured; that if they escape from the enemy and seek an
i
cf
x
}
Ly
a.
1c ORE AR a LENE
460
asylum in neutral terntory, it follows that under such an extradition
treaty as ours the neutral power should give them up.
Mr. Bethune.—Cannot they be surrendered ?
Judge Smith.—I venture to say there is nothing to that effect
in the books—nothing that even distantly alludes to the possibility
of surrender, because of the violation of the laws of war. The
‘Treaty between the two governments provides that for the violation
of the criminal law, parties shall be surrendered ; but for violation
of national law, as between belligerent powers, it does not give that
right: for it would be to declare that because an act by the law of
nations was a violation of the rules of war, therefore a private
tribunal should consider itself competent to try the case as a viola-
tion of municipal law.
There is no law, no authority, no precedent, no work of any de-
scription, which declares, that because a hostile act may be unlaw-
ful in one belligerent as violating the rales of war, the neutral is
bound to give him up to the other. I lay stress upon this point,
because it is one on which there is great difference of opinion
among the counsel at the bar. An obvious illustration of the true
distinction was put at the bar. All the authors declare that it is
unlawful to shoot a prisoner, after he is surrendered. But would
a person acting unlawfully in this respect be liable to extradition
as an ordinary felon ?
From the commencement of the seventeenth century, when the
principles of international law began to awaken attention, down to the
present time, there is no authority that does not recognise the dis-
tinction now under discussion. But here I dismiss this branch of
the case.
If, then, the Confederate States had the undoubted right. to
appoint officers and soldiers, and if we are undoubtedly obliged to
recognize that right, then the view I entertain of the evidence indi-
cates the mode in which I regard the position of Lieut. Young,
before me ; as I have just stated, I consider it proved that Young
was so appointed, and that the other prisoners were soliliers of those
States, forming, with the remaining persons who joined in the attack
on St. Albans, a party organized for the purpose of a hostile expe-
dition against that town, under the authority of their Government.
The authority of the party for the expedition seems to me to be
sufficiently established by the evidence. It is truly said by writers
on this subject, that such authority may be express or implied,
(Wheaton pp. 626-7), and in this case both kinds of authority
appear to have existed. ‘There is direct authority, from the effect
of the instructions given to Young by Mr. Seddon, and by } Mr.
Clay, to whom he was refered by Mr. Seddon ; ; and there is im-
plied authority from the possession of military rank in the service
h an extradition
ip.
ig to that effect
» the possibility
; of war. The
for the violation
ut for violation
es not give that
't by the law of
efore a private
case as a viola-
fork of any de-
may be unlaw-
the neutral is
upon this point,
nee of opinion
tion of the true
clare that it is
ad. But would
» to extradition
tury, when the
ion, down to the
counise the dis-
this branch of
ubted right to
edly obliged to
evidence indi-
Lieut. Young,
ed that Young
Idiers of those
d in the attack
a hostile expe-
r Government.
is to me to be
aid by writers
s or implied,
of authority
om the effect
, and by Mr.
there is im-
in the service
461
of the Confederate States. As to the direct authority received
by Young, it is unnecessary to quote hooks; it is a mere matter
of testimony except in respect of the effect of the alleged breach
of neutrality, which I shall have occasion presently to discuss.
But as the authority given by Mr. Clay has been stated to be an
absolute nullity because given here, I may say a word respecting
it, in passing. I do not hold that the approbation or authority of
Mr. Clay was essential to bring the acts of the prisoners at St.
Albans within the impunity afforded them by international law ;
but as Counsel have laid much stress upon this point, I will state
my views upon it. I find no rule or principle of law, which stamps
this act of Mr. Clay with absolute nullity : as between the belliger-
ents. Nor dol find his position as a diplomatic agent in a neutral
country, at all unusual. We have the well known instance of
Mr. Mason in England, and Mr. Slidell in France. They have
not been recognized as ambassadors because the independence of
the South has not been recognized by those governments ; but if
they have not those powers, they have rights as agents of a
belligerent.
‘The concession of this position does not admit that they hold the
position of ambassadors nor that the government of those countries
have recognized them as accredited envoys. But in fact Mr.
Slidell and Mr. Mason have held correspondence with the ac-
knowledged officers of the English and French governments—
they have exercised certain powers though they have not been
received as ambassadors of a recognized power. Earl Rusgell
has corresponded with Mr. Mason as the agent of his government ;
and Mr. Slidell has had interviews with Mr. Drouyn de L’Huys
in the same quality. And we know also that Commodore Barron
directed the cruise of the Florida which terminated in the bay of
Bahia. And there are numerous instances in which the United
States government have sent agents to other countries under similar
circumstances.
As to the implied authority derived from the Commission, I will
refer to two or three books, to which numbers of others, of the
same tenor, might be superadded. Mr. Lawrence says (Wheaton,
p. 248 -—* But in the "ase of one having & commission from a
‘‘ party to a recognized civil war, no irregularity as to acts done
“jure belli, will make a pirate.” Mr. Wheaton says—speaking
of the abstract right of the subjects of the belligerent powers to
assail each other—that: ‘‘ the usage of nations has modified this
“¢ maxim, by legalizing such acts of hostility only as are committed
‘* by those who are authorised by the express or implicit command
‘‘ of the state. Such are the regularly commissioned naval and
‘+ military forces of the nation,” p. 627. In the Chesapeake case,
se ‘. ee so
ett Raa aoe ales ie
MI ea Rie, ee
= Scns ti. 5 rs =
'
{
Judge Ritchie only holds it to be necessary that, even neutrals
engaging in acts of hostility should be ‘acting under the authority
“ofa commission which will hear the test of a strict legal scru-
“tiny.” * Belligerents,”’ he says, ‘* may make ¢ captures without
‘* commission,” but that neutrals can only protect themselves b
commissions from, or acting under authority of the billigerent
government. See on this point, opinions of Attorneys Goueral,
Vol. 1, p. 81, 20; 26 Wendell, p. 675, 1 Kent, pp. 4 and 6,
Lord Russell to Lord Lyons, Wheaton, pp. 253-4. Halleck, p.
388. Debate in the House of Lords on the proclamation of neu-
trality.
If these propositions of law and fact are sustained by the author-
ities and by the evidence of record, as I believe they are, it follows
necessarily that the attack on St. Albans by Young and his party
must be regarded as a hostile expedition, undert aken and carried
out under the authority of the so called Confederate States, under
the command of one of their officers. And from the principles I
have laid down, I must also hold that the acts of Young and his
party on that expedition, while in their enemy’s country, in so far
as they have a hostile character, do not fall within ordinary crimi-
nal laws, but under international law and the rights of beligerents,
and that the propriety of their acts in that capacity must be settled
between the belligerents, and not by a neutral Judge. But I can-
not leave this branch of the subject without examining an argument
of the Counsel for the applicants, which is to this effect.
They say that the act which apparently violates the municipal law
of Vermont, and which it is attempted to protect from the conse-
quences of that violation, by invoking the immunity afforded to
belligerents by the laws of war, is really deprived of its belligerent
chara acter, and consequently of that immunity, vy the breach of the
laws of neutrality, which they say the prisoners committed. That
is the broad proposition of the prosecution. They say, you cannot
enjoy the benefit of the law of nations in this instance ; you cannot
be considered as belligerents. Whatever characteristic of bellige-
rency you may have had, you have ceased to possess it. You came
here seekiug an asylum, you placed yourselves under the pro‘ection
of the laws of this country: you have violated those laws by
-vivlating our obligations as neutrals, and you have thereby ceased
to he entitled to be regarded as belligerents. And this argument
has been pushed so far as to assert that under the facts proved,
the prisoners had acquired a domicile here, and had lost not only
their character as lawful belligerents, but their national character.
Here also much discussion may be rendered unnecessary by ascer-
taining what facts are proved in support of these pretensions of
the applicants.
.
4
even neutrals
the ¢ authority
ict legal seru-
ptures without
themselves b
he billigerent
neys Geueral,
yp. 94 and 36,
Halleck, p.
mation of neu-
by the author-
are, it follows
and his party
n and carried
States, under
1e principles I
Young and his
ntry, in so far
rdinary crimi-
of beligerents,
1ust be settled
. But I can-
fan argument
ct.
municipal law
m the conse-
y afforded to
ts belligerent
breach of the
nitted. That
ry you cannot
3 you cannot
ic of bellige-
t. You came
le pro“ection
se laws by
reby ceased
is argument
cts proved,
lost not only
1 character.
ry by ascer-
etensions of
a TOS et at
163
An examination of the evidence satisfies me that the real state of
the case is : that during the autumn of 1865, Young escaped from the
United States, where he had been held asa prisoner °f war, and that
he shortly afterwards reached Toronto, where he remained till the
spring of 1864, during part of which time he appears to have
attended lectures at the University. That he left Toronto in the
spring, declaring his intention of going to Richmond; that he was
in Halifax in May, with the same expressed intention; that he re-
ceived his appointment and three letters of instructions, dated at
Richmond, in June ; that he returned to Toronto with his papers
in July ; that he was in Chicago with a large number of Confederate
soldiers, in August ; that he was at St. Catherines, in Canada,
where Mr. Clay resided, in September ; that he was in Montreal,
about the beginning of October, at St. Johns, C. E., on the 11th of
October, and at St. Albans, on the 1$th of the same month. That
Spurr, Huntley, and ‘Teavis, were also seen in © ada; Spurr, in
Toronto, in the winter of 1863-4, and Spurr, ' is, and Hutchin-
son, at St. Johns, at the same time with Young, though leaving
that place separately. And that they were at C ‘hicago, in August
last. While at Chicago the expedition against St. Albans appears
to have been organised, and the party of Confederate soldiers raised
according to Young’s instructions. And while at St. Catherines,
Young reported his doing to Mr. Clay, and obtained his sanction, both
verbal and written, of the projected attack. While at Montreal, in
October, he received from Mr. Clay $400 towards the expenses of
the expedition.
Passing over, for the moment, the question, how far this state of
facts constituted an offence against the laws in force for the pre-
servation of our neutrality, (which scems to be doubtful but upon
which it is unnecessary for me to give any opinion ;) would or
would not the violation of our neutrality take away the prisoners’
characters as belligerents? This is the exact point raised in this
connection by the applicants, and great stress has been laid upon
it, and many authorities cited to shew, that the affirmative of this
proposition is the law. It is urged that the prisoners committed the
act complained of, after they had ceased to he citizens of the Con-
federate States, and after they had voluntarily resigned their belli-
gerent character.
It is asserted that their residence in this country involved a
change of domicile on their part; and that in fact Young took up
nis residence there, antmo manendi. ‘Therefore, it is said, they
have violated the law which regulates persons domiciled in this
country, because, by acquiring that domicile, they became citizens
of this country, bound by its laws; and that, as a consequence,
they cannot invoke the privileges of belligerents.
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The first question that necessarily arises in the examination of this
pretension of the applicants, is: what are the facts from the evi-
dence ? does it appear that the prisoners have acquired a domicile,
or even have taken up their residence here? ‘There is no doubt
but that the evidence shows that, in 1863, Bennett Young did come
to this country as a political refugee ; that he resided in Toronto
for some months, and that he attended Lectures at the University,
and was again seen there in July or August. It is argued by
the prosecution, that these circumstances constitute proof, so far,
of an intention on his part to remain in Canada, that this involves,
in the eye of the law, a change of domicile, which prevents his
longer claiming the character of a belligerent soldier ; and places him
under the authority of the laws of this country, which forbid, in the
most positive manner, the doing of any thing contrary to our obliga-
tions as neutrals.
That Bennett Young remained in Toronto for a time, under the
protectica of the laws of this country, may be taken as proved ;
but the presumption as to his animus manendi, passes good
only so long as he remained. Ifa foreigner departs from a country,
the animus revertendi is presumed, and the animus manendi neces-
sarily disappears, as aifecting the law of domicile. The existence
of the animus manendi is presumed from the fact of continued
residence in a country. But, as to Young, he left the Province
in April or May, to go down to the Confederate States. The proof
of this is in the record. In short, the fact of his being in Rich-
mond, and receiving there a sommission from the Confederate
Government, appears to me to be clear.
(Some discussion here occurred as to the proof of the presence of
Young in Richmond.)
Judge Smith.—The tenor of the whole of the facts leads to the
conclusion that he went to Richmond, and there received his com-
mission and instructions: and I shall assume, for the purpose of my
argument, that this was the case. Does this voluntarily entering
into the service of his country, as a Confederate soldier, not show
the intcntion to retain his domicile of origin, and his national
character? Now, the reception of the commission shows that he
returned to the service of his country. So far as this question of
domicile is concerned, the antmus manendi cannot be considered
as existing, but the animus revertendi is rather to be presumed.
There can be no doubt therefore, that in point of fact, there
was no acquisition by him of a domicile here, nor any loss of
his national character. But so long as he remained here he was
certainly bound by our laws as much as if he had been a British
subject. Assuming however that there was a breach of neutrality
connected in some way with the expedition against St. Albans,
pice Sth alas RR
ination of this
from the evi-
ed a domicile,
eis no doubt
ung did come
d in Toronto
e University,
is argued by
proof, so far,
this involves,
prevents his
nd places him
forbid, in the
fo our obliga-
1e, under the
as proved ;
passes good
m a country,
inendi neces-
‘he existence
of continued
he Province
. The proof
ng in Rich-
Confederate
presence of
eads to the
ed his com-
rpose of my
ly entering
r, not show
his national
ws that he
question of
considered
presumed.
act, there
ny loss of
ere he was
a British
neutrality
. Albans,
i NORRIE h hNSCs
465
would that breach of our neutrality take away from a hostile act
committed in the enemy’s territory, the immunity due to it ?
The Counsel for the prosecution answer this question in the
affirmative. But I cannot find this pretention sustained by any
authority ; certainly not by any of the numerous authorities they
cited. The law of nations does not recognize such a principle.
No judgment of any court that I am acquainted with has ever
declared it. On the contrary, the true doctrine incontrovertibly
is, that the violation of the neutrality of a nation, by a belligerent,
has no effect or bearing whatever upon the belligerent character of
the offender, in reference to acts done within the enemy’s ter-
ritory. That such violation is illegal no one denies, and in
that respect the authorities cited for the applicants are unimpeach-
able. But those authorities have reference chiefly to the transfer
of property by capture, and they properly hold that a maritime
capture may be held void by reason of any breach of the law of neu-
trality which occurred in making it. But this objection to the
validity of a maritime capture is a thing with which belligerents
have nothing to do. If the Southern belligerent violates our neu-
tral or municipal law, what has the United States Government to
say to that? Can they complain of the violation of our law ?
So far from that, all writers on international law hold that no
violation of neutral territory can be considered at all, in the interest
of either belligerent. It is the neutral alone who can complain.
But examining for a moment the pretension as to the deprivation
of the character of hostility by a breach of neutrality. ‘Take the
case of Gen. Lee coming here with 75,000 men, taking possession
of one of the railroads in Canada, conveying his troops through the
heart of our territory, and in retaliation for acts done in the South,
making a raid on Vermont. Lee’s authority to do this, would not
be more extensive than Young’s was; and the act would be a
greater breach of neutrality than Young’s could have been.
Is it possible that Lee would be held to have lost his belligerent
character and to be liable to be treated as a mere robber ? Or that
he would he held to retain his belligerent character, merely because
he perpetrated the breach of neutrality with more men than Young
had, their acts being the same, and their authority derived from
the same source. Surely he who commits a similar act, though
with but 20 men, would be entitled to be judged by the same
rule. <A different decision would be manifestly wrong in prin-
ciple. And if the doctrine be applied fairly, as we, as neutrals,
are bound to apply it, what becomes of the hostile character
of the thousands of Federal soldiers, who have passed through
Western Canada. Are they all robbers because they have
done so? are the soldiers illegally enlisted here for the Fed-
EE
466
eral armies robbers also? But assuming that there is a violation
of neutral territory in this case, in its largest possible sense ; that
these men have gone through this country to St. Albans to make
this raid, and that doing so, as well as receiving instructions from
Mr. Clay, were in violation of the laws of neutrality. Let us see how
far the authorities sustain the proposition I have laid down, that it
is the neutral only, and not either belligerent that can complain
of such violation, at least before any court of justice. I shall
cite for convenience sake, the letters of ‘‘ Historicus’’ to illus-
trate the matter. They are sustained by the force of their reason-
ing and also in every‘case, by the citation of authorities. There
is no rule upon the point now under consideration laid down in the
letters of ‘‘ Hfistoricus,’” which is not supported by authority, not
only from international law, and the text writers, but to a great
extent, by the decisions of the Courts of England and of the United
States themselves.
Mr. Harcourt says, p. 150: “The elementary and universal
‘“‘ principle which lies at the root of the whole question, is the
‘ absolute title of the neutral sovereignty to immunity, whether
“ as regards its territory or its prerogatives, from the interference
** of belligerent operations of any kind. A violation of this immunity
is one of the clearest and highest offences against public law.
‘* For one belligerent to pass through the neutral territory without
“¢ the leave of its Sovereign—to carry on hostile operations within
“‘ neutral jurisdiction; to levy soldiers or sailors, or to equip
‘“¢ vessels of war within the neutral soil—are familiar instances of
‘* violations of the rights of neutral sovereignty. They are acts
‘‘ eminently unlawful, and the neutral Government is entitled to
‘‘ prohibit, and, if necessary, to avenge their commission. In
‘‘ order the more clearly to illustrate the argument, I will select
‘“‘ the particular instance of levying forces and equipping arma-
‘‘ ments by one of the belligerents within the neutral territory,
‘¢ without the leave of its Sovereign; in order accurately to exam-
‘ine the rights and duties to which such an act gives rise. It is
‘“‘ now admitted on all hands (though the matter was at one time
“ faintly disputed) that such conduct on the part of a belligerent
‘is a gross violation of the rights of the neutral Sovereign.” And
he says at p. 151, ‘‘ Such acts are a clear violation of right as be-
‘“‘ tween the offending belligerent and the neutral government.”
And at page 151 he continues, ‘ Such proceedings are, therefore,
‘“‘ upon both grounds in the highest degree unlawful ; municipally,
‘‘as between the Sovereign and the subject; internationally as
“‘ between the offending belligerent and the offended neutral.”
This is a statement in succinct and clear language, of the doc-
trine which pervades every case cited on this point by the Counsel
i3 & Violation
sense ; that
ans to make
uctions from
et us see how
lown, that it
an complain
ce. I shall
is’ to illus-
their reason-
‘les. There
down in the
thority, not
to a great
’ the United
d universal
‘ion, is the
ty, whether
nterference
iS immunity
public law.
ory without
‘ions within
to equip
nstances of
Py are acts
entitled to
ssion. In
will select
bing arma-
territory,
y to exam-
ise. Itis
one time
belligerent
a” And
cht as. be-
prnment.””
therefore,
nicipally,
onally as
ral.”’
the doc-
Counsel
AS nro
4607
for the prosecution. It is an unlawful act, they say both munici-
pally and internationally, to violate the neutrality laws of the neutral
power: and their position is unassailable to that extent. But I do
not agree with them as to the inference they draw from this rule
as applied to the present case. Our laws upon this subject are not
made to protect the United States, but to protect ourselves. Their
object “is to prevent, foreign nations injuring us, not to protect
‘them from one another”—(‘* Historicus,” p. 152.) And the
breach of them is a matter with which the other belligerent has
nothing to do. ‘The right which is injured by the act of the
‘* offending belligerent is the right of the neutral government, and
‘¢ not that of the other belligerent.”’ And ‘ the important conse-
‘“‘ quence of this proposition is, that it is the neutral and not the
‘* belligerent, who is strictly entitled to claim or to enforce the
“remedy. And he is the only person who is entitled to complain
‘“‘ of and to redress its infraction.”” To these statements of the
principles applicable to this point in which I use the words of Mr.
Harcourt, I might add also in his language that “when this
‘¢ point is properly apprehended, the solution of the question be-
‘* comes simple and satisfactory.” And I have no doubt but that
the doctrine thus laid down is a sound one. It may be illustrated
by the instances of the passage of troops through neutral territory
(1 Kent, p. 119) the levies of troops in the neutral country (Ib.,
119) ; Captures in neutral waters which are declared to be “as be-
‘* tween enemies to all intents and purposes rightful”? (8 Wheaton,
Rep. 435. The Etrusco 3 Rob. 162), and captures made without
the territory by vessels which have been equipped in violation of
the laws of the neutral state. (Brig Alerta vs. Blas Momet,
3 Peters 425). These illustrations are cited by Mr. Harcourt,
(pp. 153, + and 5), and they bear a close analogy to the various
breaches of neutrality charged against the prisoners : namely, that
they organised in this country; that they passed through it on
their way to St. Albans, and that the expedition proceeded from
this country. These are on all fours with some of the illustrations
I have referred to, as cases in which the neutral alone ‘ can com-
plain of or redress” the violation of her territory ; and that ‘ the
right which is injured is the right of the neutral alone,” and
‘not that of the belligerent.”
I have taken these authorities from Mr. Harcourt’s book for con-
venience merely, but it would be easy to multiply them. The
correctness of the doctrine they lay down cannot, I think, be
successfully disputed. Counsel have cited a number of authorities
to prove that a breach of neutrality is unlawful, that captures in
violation of neutrality are subject to be declared void, and are in
violation of international law ; but they have not cited any authority
F Le :
Lae games ag ort Stee
fe
468
to prove that such illegality or such violation has any other effect
than to make the offenders responsible to the neutral.
In matters of violated neutrality the neutral alone is the judge.
In this case, if our Government permitted the passage of Young
with his party through our territory, as an armed party of Southern
troops, the United States Government might complain to our
Government of the granting of the permission, unless we have
granted similar privileges to her troops, in which case she could
not. But such passage, and still less a peaceful passage, of un-
armed or apparently unarmed men through our territory, can afford
no grounds to the United States to appear before our Courts, and
urge that our neutrality has been violated ; and such a charge from
them assumes a character of absurdity when it is made a ground,
indirectly it is true, but still a ground, for an application that the
offenders be handed over to them for punishment. If that is law I
am at a loss to imagine upon what principle it can be held so. I
have not found such an opinion laid down in the books, and I cannot
but consider that it proceeds from fallacious reasoning. But there
are recent illustrations of this view precisely in point. The appli-
cants have endeavored to shew that the prisoners had become
British subjects, pro hoe vicé, as they term it, and subject to the
obligations of British subjects. But even granting that they were
actually British subjects, which is the most favorable case for the
applicants, the rule contended for would not apply, if they acted
under a commission from the belligerent.
I have already adverted repeatedly to the Gerity case, but I
must again refer to it in this behalf. Ch. J. Cockburn says: “I
‘* concur in thinking that persons so acting, though not subjects of
‘* a belligerent state, and though they may be violating the laws of
‘¢ their own country * ™* * such persons cannot be treated as
‘¢ pirates.” In the Chesapeake case Judge Ritchie, speaking of
neutrals engaging in hostilities, says: ‘‘ ‘They may make themselves
‘“ amenable to the law of their own country * * * but they
‘“‘ cannot be dealt with by the belligerent against whom they are
‘“‘ acting, as pirates.” And further on he states: they cannot
‘* without any commission or authority fit out in a neutral country
a hostile expedition against a power at peace with such country,”
&c., &c. And he warns them that if they do so, they must take
care to have a commission. In the Gerity case the party went on
board the vessel at a neutral port ; in the Roanoke case they did
so also ; in the Chesapeake case the prisoners were British subjects
et it was distinctly laid down in two of those cases that a violation
of neutrality did not affect the character of belligerency in the
prisoners ; and in the third, so far as I know, the question was not
attempted to be raised.
ther effect
the judge.
of Young
f Southern
in to our
3 we have
she could
ge, of un-
can afford
ourts, and
iarge from
a ground,
n that the
at is law I
Id so. I
d I cannot
ae there
‘he appli-
d bicide
ect to the
they were
e for the
hey acted
se, but I
pays: “J
bjects of
e laws of
reated as
paking of
hemselves
but they
they are
Y cannot
country
ountry,”’
ust take
went on
they did
subjects
Violation
y in the
was not
A ce
469
I am therefore constrained to hold that the attack on St.
Albans was a hostile expedition authorised both expressedly and
impliedly by the Confederate States; and carried out by a com-
missioned officer of their army in command of a party of their
soldiers. And therefore that no act committed in the course of, or
as incident to, that attack can be made the ground of extradition
under the Ashburton treaty. And that if there had been any
breach of neutrality in its inception, upon which point I state no
opinion, it does not affect this application, which must rest entirely
upon the acts of the prisoners within the territories of the State
demanding their extradition, and upon their own status and
authority as belligerents.
Before pronouncing the judgment which is indicated by these
remarks, I would however say a few words upon another branch
of the case, which involves considerations of the highest character ;
and which, though I do not allude to them as deciding this case,
must have their weight whenever political considerations appear to
form an element in any act for which extradition is demand-
ed. It is conceded without controversy, by writers and by the
Courts that extradition laws are to be interpreted by the law
of nations, in so far as the obligations ereated by them on the
part of one nation to another are concerned ;—and that the then
existing public law of both nations form an essential part of the
national compact which is created by the passage of an extradition
treaty. In 1842, when this extradition act was passed, the public
law of Great Britain as well as the public law of the United States
became incorporated with the national compact. It can not be
said that England or the United States passed this act without
reference to the public law of either country. ‘Then, it became
part of the contract. ‘The stipulations of the contract with regard
to the definitions of the crimes covered by it, were to be carried
out in conformity with the municipal laws of both countries, in so
far as they agreed. We have then the law of nations, and both
the public and municipal law of both countries, combining to form
the compact effected by the passing of the Ashburton treaty.
Now, if the public law of both countries, at the time the extra-
dition Act passed, recognized the principle of international law, that
lawful belligerents are entitled to all rights incident to a state of
belligerency—that should be regarded as the law governing us, just
as much as if it were actually inserted in the Treaty. But the
United States deny that the so-called Confederate States are law-
ful belligerents, and though virtually they treat them as such, they
refuse formally so to recognize them, as to give them that status in
their Courts of Justice. It is upon their denial of the position of
belligerency to the Confederate States, that such claims as those
470
we read of, on account of the depredations of the Alabama and
the like, are based. But we cannot be influenced by the position
which the United States have thus chosen to assume. They might
as well choose to ignore portions of the stipulations ‘of the Treaty
itself, as insist upon the acceptance of such an interpretation of it.
For my part I must, at all events, adopt the view entertained by
my own country, and finding that differ from the one adopted by
the United States, I feel additional responsibility and the necessity
of increased caution, when I am required by the latter country to
do my part towards the carrying out of the Treaty. The United
States themselves, and all civilized countries, make a wide distince-
tion between offences committed during a normal state of things,
and those which are incident to political convulsions, or the unusual
condition, politically speaking, of any portion of any country.
Under this distinction, political offenders have always been held to
be excluded from any obligation of the country in which they take
refuge to deliver them up, whether such delivery is claimed to he
due under friendly relationship, or under treaty, unless in the latter
case, the treaty expressly includes them. The case of fugitive
slaves appears to me to rest to some extent on the same eround ;
and on principle, the extradition of a fugitive slave for taking life
in defence of his right of personal freedom, would seem to me to be
unsustainable, except by a nation recognizing by its laws and within
itself the institution of slavery. And deserters have been usually
treated as being in the same category. Political offenders, however,
form the most conspicuous instances of exclusion from the operation
of the extradition law. No nation of any recognised position has
been found base enough to surrender, under any circumstances,
political offenders, who have taken refuge within her territories—
or if there be instances, they are few in number, and are recorded
as precedents to be reprobated rather than followed.
And it is in connection with struggles like that now going on in
the United States, that the doctrine of asylum has received its most
remarkable illustrations. The famous letter of Lord Palmerston
on the subject of the Hungarian refugees, has been repeatedly
adverted to, and contains such an exposition of the principle as
might have been expected from that statesman.
(The learned judge here referred to Wheaton at pp. 40, et seq.,
and 139, et seq., discussing at considerable length the position and
relations of a nation during a civil and revolutionary war ; also the
effect of changes in the obligations of treaties, where either party
to them has been revolutionized.)
I do not hold, however, nor have I any right to hold, that the
treaty 1s not in force, by reason of the unhap py circumstances in
which the United States find themselves. But I do think that I
bama and
1e position
hey might
he Treaty
ition of it.
tained by
lopted by
necessity
ountry to
ie United
le distine-
of things,
e unusual
country,
n held to
they take
ned to be
the latter
' fugitive
ground ;
King life
me to be
id within
1 usually
however,
peration
tion has
stances,
ories—
ecorded
g on in
its most
erston
atedly
iple as
t seq.,
bn and
Iso the
party
t the
ces in
hat I
471
am bound to scrutinize with a greater degree of caution, the cir-
cumstances of any case which appear to possess a political char-
acter, or which scem to grow out of the struggle which is now
proceeding. And I must be the more scrupulous in weighing the
pretensions of the prisoners as to their justification by their pos-
session of a belligerent or political character, when I know, that the
defence arising out of such a character, which England would re-
cognize as valid, if sustained ; would not even be received or listened
to in the United States as being sufficient in law, however fully
substantiated. This question was discussed in the United States,
during the trial of the “‘ Savannah” case; and the defence of the
prisoners that they were commissioned belligerents, was ignored by
the dictum of Judge Nelson, charging the jury, as matter of law,
that neither he nor they could take that defence into consideration
at all, until the belligerency or independence of the Southern States
was recognized. It behoves us, therefore, to be satisfied that the
offence of robbery, according to our interpretation of the position
of the Confederates, has really been committed, before I consent to
order these prisoners to be remitted for a trial of the issue they
raise in their defence, to a tribunal which would ignore that de-
fence as insufficient in law, however satisfactorily established ; and
IT consider the remarks of Judge Crompton already referred to, as
being peculiarly appropriate to such a condition of things.
With this view of my duty, I have gone carefully and at perhaps
unnecessary length into this matter. I have considered it proper
to enter at greater length into the examination of some questions,
which perhaps in themselves admit of no great doubt, but upon
which in my humble judgment erroneous views have been enter-
tained, and urged with great earnestness at the Bar. I have
endeavored to guide myself, by what is recognised as law by the
civilized world, instead of suffer ¢ myself to be sw ayed by popular
cries, or by the passions and ir3:.nces which the proximity of this
lamentable convulsion has stirred apamong us. And I have come
to the conclusion that the prisoners cannot be extradited, because
I hold that what they have done does not constitute one of the
offences mentioned in the Ashburton treaty, and because I have
consequently no jurisdiction over them. I am of opinion therefore
that the prisoners are entitled to their discharge.
(The conclusion of the learned Judge’s remarks, which occupied
three hours and a half in the delivery, was greeted with loud
cheers in Court, which the officers wese unable to suppress; and
which were taken up and repeated by the crowds in the lobbies and
outside the building.)
Hon. Mr. Abbott.—I would like to know what my learned
friends for the prosecution of things intend doing upon the other
charges ?
472
Mr, Devlin.—I propose to proceed with every charge against
the prisoners.
Hon. Mr. Abbott.—When will you proceed ?
The Court.—The prisoners are remanded till Saturday on the
second charge, when the enquiry upon it will come up.
WepDNESDAY, April 5th.
At half-past ten o’clock this morning, the five prisoners, Bennett
H. Young, Marcus Spurr, Squire Turner Teavis, Charles Moore
Swager, and William Huntley Hutchinson, were brought into
Court, and soon afterwards Mr. Justice Smith took his seat on the
bench. Mr. Johnson, Q. C., and Mr. Carter, Q. C., were present
on behalf of the Crown, and Mr. Devlin on behalf of the United
States. The Hon. Mr. Abbott, Q. C., Mr. Laflemme, Q. C., and
Mr. Kerr were present on behalf of the prisoners.
Mr. Devlin stated that since the last sitting of the Court he had
been officially informed by the Hon. Mr. Cartier that after the
judgment of His Honor on the charge for the robbery of Mr.
Breck, it was the intention of the Government to proceed against
the prisoners for breach of the neutrality laws. Having commu-
nicated this fact to the United States Government, he (Mr. Dev-
lin) was instructed to withdraw the charges against the prisoners
before the Court. He accordingly asked to be permitted to with-
draw the charges.
Mr. Abbott was in hopes the learned Counsel would go one step
further, and say that no further application for extradition by rea-
son of the occurrences of the 19th October last, would be made by
the United States government.
Mr. Devlin said the learned Counsel asked too much of him, as
his functions ceased before this Court, and did not extend beyond
the cases actually before his Honor.
Mr. Carter said that as one of the Counsel for the Crown, he
might be permitted to say something with reference to the rumors
which had been circulated as to the course the Government in-
tended to pursue. ‘The Government had adopted such means as
would be most likely to bring these men to trial on charges of vio-
lating our neutrality laws; but it was not the intention of the
Government to institute, nor would they aid in instituting, nor would
they countenance, any further proceedings with a view to the ex-
tradition of the prisoners. So far as the Government is concerned,
he desired to disabuse the public mind of a misapprehension in
relation to the course of the Government. It might be, and had
been, asked, why the Government did not proceed against the pri-
soners, in the first instance, for violation of the neutrality laws.
No such proceedings could have been taken. It was only when
ee
samen
arge against
irday on the
April 5th,
ers, Bennett
arles Moore
rought into
seat on the
ere present
the United
Q. C., and
urt he had
i after the
ry of Mr,
ed against
if commu-
(Mr. Dey-
’ prisoners
»d to with-
0 one step
n by rea-
made by
bf him, as
1 beyond
rown, he
e rumors
ment in-
eans as
8 of vio-
h of the
br would
the ex-
cerned,
nsion in
und had
the pri-
y laws.
y when
STA tee
473
the prisoners had gone on their defence, and the line of defence had
been developed, that any evidence was adduced to form the basis
of the judgment, that they were to be regarded as belligerents, and
in consequence of that judgment, and then only, could the Govern-
ment take any proceedings against them for breach of neutrality.
Mr, Abbott was very glad to hear so distinct a declaration from
the learned Counsel for the Crown; but he had yet to learn that
the Government could do anything in such matters. He would
like to know if the Government could control the law. The Statute
had accurately prescribed the process by which enquiries of this
nature were to be conducted, and the Government could neither
promote nor prevent such inquiries. The United States Govern-
ment had free access to our tribunals to demand a judgment
authorising extradition; and it was the magistrate alone, before
whom such a proceeding might be taken, who could determine
whether the circumstances would justify extradition or not.
The Governor-General might finally prevent the extradition of the
prisoners by refusing to sign the warrant, and a pledge that he
would so refuse, would settle the matter. But he (Mr. Abbott)
did not understand that any such pledge was given by the Counsel
for the Crown ; nor did he ask for or expectit. Ifthe case came up,
the Governor would doubtless act according to his discretion, and
under the advice of his constitutional counsellors. But it was the
United States who should declare what they intended to do, as upon
them depended the initiation of proceedings. He therefore desired
the learned Counsel for the United States, in order to allay the feeling
of the public, to declare that it was not the intention to proceed
with any other charges. The Government had declared their in-
tention to remove the prisoners to Upper Canada ; and the learned
counsel for the United States had withdrawn all the charges then
before his Honor ; these charges originally consisted of the case of
Breck, already disposed of, and that of assault with intent to mur-
der. Let his learned friend (Mr. Devlin) state that the United
States abandoned their claims for extradition, and that would be
sufficient. He knew the extraordinary excitement that had been
created ; not only among those persons who were against the ex-
tradition of the prisoners, but also among those who held a differ-
ent view; by the belief that the removal of the prisoners to Upper
Canada was only intended to bring them within the jurisdiction of
Judges who were supposed to entertain a different view of the law
from his Honor. The precautions taken to put down any violence,
proved the extent of that excitement. His learned friend was a
citizen of Montreal as well as himself, and he could not desire to
see the city the scene of tumult and perhaps of bloodshed, all of
which might be prevented by a word from him. He (Mr. A.) of
474
course made no pretension to asking for this asa right. He only
suggested it as a proper step to tranquillise the publie mind,
Mr, Devlin sad it was huniliating to the last degree to be
obliged to listen to such statements. Was it possible that the causes
of law and order have no friends, in this city; that we are ruled
by a moh; that justice had fled altogether from amongst us; that
the Government of Canada must suecumb to, and in all its future
dealings with the country be influenced and cuided hy, the rowdy
clement. Mr, Abbott admitted that the Government was right in
bringing these men to trial for a violation of Canadian law ; but
the next moment he told them that this right could only be exercised
upon certain conditions, dictated by the prisoners, otherwise we
might find ourselves plunged into a state of tumult, riot, and blood-
shed. But he disregarded these threats, and believed that the
Government would be supported in the exercise of its legitimate
authority. We were gravely told, that the citizens of Montreal
were excited to an alarming degree, because the Government had
dared to hold the St. Alban’s raiders to account for having violated
the sanctity of the asylum, afforded to them in Canada ; and that
it required the positive assurance actually demanded from the
Counsel for the United States, to restore tranquillity, to ensure
confidence, and to allay the rising wrath of the exasperated citi-
zens. Well, for his part, he would repeat again and for the last
time, that he would make no other promise or pledge than that
actually given; and if his refusal to do so, should entail all the
disastrous consequences indicated in the speech of his learned
friend, he (Mr. Devlin) would say far better and more honorable
would it be to encounter these disorders, than to incur the odium of
entering into dishonoring bargains with persons accused of crime,
for the privilege of being allowed to put them upon a trial, which
they knew well would terminate like those through which they have
heretofore so successfully passed. In so far as the United States
were concerned, the liberation of the prisoners was not feared by
his clients. They had met and conquered more troublesome and
more desperate enemies, and more formidable assailants than the
persons now before this Court, and could do so again. But what
the United States do care about was, our good faith. They wish
to know whether we mean to fulfill our treaty.engagements ; whe-
ther we intend to preserve our neutrality, or whether while pre-
tending friendship, we were not acting the part of war’s disguisc
and treacherous enemies. ‘This was the true cause of the interest
taken in the extradition of the offenders by the United States.
Mr. Carter said that he did not know what further statement his
learned friend (Mr. Abbott) could ask, after the statement of the
learned Counsel for the United States. It would clearly be impos-
IIe only
nind, '
zree to he
t the causes
are ruled
st us; that
l its future
the rowdy
1S right in
law ; but
exercised
erwise we
ind blood-
that the
legitimate
Montreal
ment had
r violated
and that
from the
O ensure
ited citi-
the last
an that
all the
learned
norable
dium of
crime,
» Which
y have
States
red by
e and
an the
what
y wish
whe-
Pp pre-
ruis¢
erest
ht hig
the
hpos-
475
sible to entertain an application in Upper Canada after the Govern-
ment had instituted proceedings based on these acts, as acts of
hostility, and not as common robberies. ‘The Government was the
Government of Upper Canada as well as of Lower Canada, and
would not be likely to disclaim in Upper Canada what it had autho-
rized in Lower Canada. He thought it unfair towards the
learned Counsel for the United States to ask from him a pledge
after the declaration he had made.
Mr, Abbott said he had asked no pledge, he had simply suggested
a declaration of intention, which the newspapers of the day stated,
‘“* by authority,” that the learned Counsel was empowered to make,
Ife had suggested this, and instead of it, he had got a speech from
Mr. Devlin, in which any such declaration was carefully avoided.
Besides, this speech was filled with assumptions as to the position
of the prisoners and their friends, which were simply ridiculous.
No one objected to the prisoners being tried for a breach of neutra-
lity. Ile (Mr. A.) had always been of opinion that they ought to
be; and although the investigation had proved that there was little
if any ground for the charge, still no one objected. But what
had aroused this whole community, was the belief that the removal
of the prisoners was only a dishonorable artifice, by means of which,
the United States Government were to be enabled to evade the
solemn judgment, rendered in this cause in favor of the prisoners.
That impression could be destroyed by a word from his learned
friend, uttered openly here in the face of the community: and he
had. listened carefully to the outburst of his friend, only to find
with regret that he carefully avoided uttering that word. He
again begged of him to consider whether he might not yet say it.
Mr. Devlin reiterated the instructions he had received to with-
draw all the charges before His Honor. ‘The proceedings for vio-
lation of the neutrality laws had been instituted, before he addressed
the Hon. Attorney-General on the subject. He contended that his
learned friend (Mr. Abbott), as one of the legislators of the coun-
try, owed it to the laws of his country, which he had helped vo
make, that he should see that they were carried out, and to make
every effort to that effect. Should we by our sympathy for the
South, or a desire to see the North crushed, say to them, that no
matter what offences were committed against them, we would not
yield up the offenders; and this too for men who would be rejoiced
to see Canadians shedding each other’s blood? He would inform
Mr. Abbott that there were many in this city whose sympathies
were not so much with the South as to cause them to permit the
laws to be trampled upon.
Judge Smith was disposed to give the declaration of the Counsel
for the United States its widest signification; and said that he
476
could not conceive that any intention, of the nature apprehended
by Mr. Abbott, could exist, after the declaration of the learned
Counsel for the prosecution. No Court in the country could again
entertain a demand for extradition in the St. Albans case, because
it had been disposed of on the broadest ground ; and Judges quoad
such matters were Judges of the Empire, having concurrent juris-
diction, and could not a second time take up what would be virtu-
ally the same question.
Mr. Kerr regarded the declaration as a final withdrawal of all
claims for extradition. The Governor-General could not, in the
face of such a declaration, sign a warrant for the extradition of the
prisoners. It was equally binding on the Government of Canada
and the Government of the United States, and they could not
recede from it without gross violation of honor.
The Judge thereupon ordered that the prisoners be discharged.
Mr. Abbott asked the Court to order that the private property,
money, and private papers, of the prisoners be restored to them.
Mr. Carter objected as to the papers of record.
Mr. Abbott said those papers wefe necessary to the defence of
the prisoners.
Mr. Johnson said that the Court had not the power to dismantle
the record in such a manner.
Judge Smith ordered that the papers remain in the official cus-
tody of the Clerk of the Peace; and granted the application in
other respects.
W. Ermatinger, Esq., J.P., and E. Clarke, Esq., J.P., being
present,
Mr. Carter said, addressing them, that with reference to the
information which had been laid before them, and on which their
Honors had issued warrants for the arrest of the five prisoners on
charges of breach of the neutrality laws, he now asked to be per-
mitted to withdraw the proceedings, with the view to the removal
of the enquiry to Toronto.
The prisoners were discharged accordingly. They were imme-
diately taken into custody by a peace-officer from Toronto, under a
warrant from Recorder Duggan; and were removed to Toronto on
the same day, by special train.
peer
apprehended
the learned
could again
ase, because
udges quoad
‘urrent juris-
ald be virtu-
lrawal of all
not, in the
lition of the
t of Canada
7 could not
lischarged.
e¢ property,
to them.
defence of
) dismantle
official cus-
hieation in
.P., being
ce to the
hich their
soners on
o be per-
P removal
re imme-
, under a
ronto on
APPENDIX.
At the Court at Osborne House, Isle of Wight, the 4th day of
February, 1865.
THE QUEEN’S Most EXxceLLent MAJESTY.
Lord President—FEarl of Clarendon, Duke of Somerset, Mr. Massey.
Whereas, by an Act of Parliament passed in the Session of Par-
liament held in the 6th and 7th years of Her Majesty’s Reign,
intituled: “An Act for giving effect to a Treaty between Her
‘‘ Majesty and the United States of America for the apprehension
** of ceriain offenders,” it was by the 5th section enacted that if by
any law or ordinance made by the Local Legislature of any British
Colony or Possession abroad, provision should be made for carry-
ing into complete effect within such Colony or Possession, the
objects of the said recited Act by the substitution of some other
enactment in lieu thereof, then it should be competent to Her Ma-
jesty, with the advice of Her Privy Council, (if to Her Majesty in
Council it should seers meet, but not otherwise,) to suspend the
operation within any such Colony or Possession of the said recited
Act, so long as such substituted enactment should continue in force
there and no longer.
And whereas, by an Act passed by the Legislative Council and
Assembly of Canada, in the 12th year of the Reign of Her present
Majesty, intituled: “An Act for giving better effect within this
Province to a Treaty between Her Majesty and the United States
of America, for the apprehension and surrender of certain offenders,”’
(which Act was afterwards incorporated in and continued by the
89th chapter of the Consolidated Statutes of Canada, under and by
virtue of another Act of the said Legislative Council and Assembly,
passed in the 22nd year of Her Majesty’s Reign, intituled: “ An
Act respecting the Consolidated Statutes of Canada),”’ provision
was made for carrying into complete effect, within the said Province,
the objects of the said first recited Act of Parliament.
And whereas, by an Order in Council, made on the 8th day of
January, 1850, Her Majesty, by and with the advice of Her Privy
Council, was pleased to suspend the operation of the said first
recited Act in Canada, so long as the substituted enactment con-
tained in the said Act of the Legislative Council and Assembly of
SS
————
478
Canada, of the 12th year of Her Majesty’s Reign, should continue
in force and no longer.
And whereas, by another Act passed by the said Legislative
Council and Assembly in the 24th year of the Reign of Her Ma-
jesty, intituled : “* An Act to amend chapter 89 of the Consolidated
Statutes of Canada, respecting the extradition of fugitive felons
from the United States of America,” further provision hath been
made for carrying into effect within the said Province the objects
of the said recited Act of Parliament, by the repeal of certain sec-
tions of the said chapter 89 of the said Consolidated Statutes, and
by the substitution of other provisions in lieu thereof.
And whereas, by the said last mentioned Act, and by the said
89th chapter of the Consolidated Statutes of Canada, as thereby
altered and amended, sufficient provision is made for carrying into
complete effect within the said Province the objects of the said first
recited Act of Parliament.
And whereas doubts may exist whether the effect of the said
Acts of the said Legislative Council and Assembly subsequent to
the 12th year of Her Majesty’s Reign may not have been to
render the said Order in Council of the 8th day of January, 1850,
no longer operative in Canada, and it is expedient that such doubts
should be henceforth removed and that the operation within the
said Province of the said first recited Act of Parliament shall be
and continue suspended so long as the above recited Provincial
Acts shall be and continue in force there and no longer.
It is therefore ordered and declared by the Queen’s Most Excel-
lent Majesty, by and with the advice of Her Privy Council, as fol-
lows :
I. The operation within the said Province of Canada of the said
first recited Act of Parliament (if and so far as the same is now
in force therein), shall be and continue suspended so long as the
said Provincial Acts shall be and continue in force there and no
longer.
II. Our Governor General of our said Province of Canada shall
cause this order to be publicly notified and promulgated in the said
Province as soon as conveniently may be after his receipt thereof,
and the same shall take effect and come into operation upon and
from the day of such public notification and promulgation thereof
in our said Province, so as not to invalidate any Act lawfully done
in the said Province before the date of such public notification and
promulgation.
And the Right Honorable Edward Cardwell, one of Her Majes-
ty’s Principal Secretaries of State, is to give the necessary direc-
tions herein accordingly.
(Signed,) ARTHUR HELPS.
hould continue
id Legislative
of Her Ma-
Consolidated
ugitive felons
on hath been
e the objects
f certain sec-
Statutes, and
by the said
A, as thereby
arryiny into
the said first
of the gaid
ibsequent to
ive been to
uary, 1850,
such doubts
1 within the
ent shall be
Provincial
lost Excel-
1cil, as fol-
of the said
mg as the
re and no
ada shall
. the said
t thereof,
1pon and
1 thereof
lly done
tion and
' Majes-
y direc-
LPS.
479
OPINION OF SIR HUGH CAIRNS AND MR. FRANCIS
REILLY.
CASE FROM CANADA FOR THE CONSIDERATION OF COUNSEL.
Upon a demand made by the Government of the United States
for the extradition of Bennett H. Young and fonr others on a
charge of having robbed one Samuel Breck at St. Albans, in the
State of Vermont, on the 19th day of October last, certain evi-
dence has been taken which is to be found in the printed report of
the proceedings from page 129 to page 220 inclusive.
The opinion of Counsel is requested upon the following questions |
arising out of the evidence :
Question.—Does the evidence sufficiently establish that on the
19th of October last, Bennett H. Young was a commissioned officer
in the army of the Confederate States, and that the other prisoners
were soldiers in that army, and were then under his command ?
Answer.—We are of opinion that the evidence sufficiently esta-
blishes the points referred to in this question.
Question.—In what capacity does it appear from the evidence
that he and his party acted on that day at St. Albans ?
Answer.—We are of opinion that it appears from the evidence
they acted in a belligerent character.
QYuestion.— Under the circumstances proved and under the laws
of war, had the prisoners the right of taking Breck’s money, as the
evidence shows they did (pp. 131, 2, 3, 4, 9, 141, 2)?
Answer.—Though in the conduct of war on land the capture by
the officers and soldiers of one belligerent, of the private property
of subjects of the other belligerent, is not often, in ordinary crises,
avowedly practised at the present day, it is yet legitimate.
We are therefore of opinion that this question must be answered
in the affirmative.
Question.—Is the character of the prisoners’ acts at St. Albans
in any respect affected by the facts proved in relation to Lieutenant
Young’s proceedings in Canada, or to those of any of his party ; or
by their having passed through Canada previous to the attack ?
Answer.—We are of opinion that any such facts as those refer-
red to in this question cannot affect the character of the prisoners’
acts at St. Albans.
Question.—Does the taking of Breck’s money under the circum-
stance proved, constitute the crime of robbery within the meaning
of the Ashburton Treaty ?
Answer.—We are of opinion that the facts proved do not con-
stitute the crime of robbery within the meaning of the Extradition
Treaty.
480
The acts of the prisoners derive their character in contemplation of
law, from the animus, the intent of the actors. Their intent having
been, as the evidence clearly shows, not colorably, but really, to
exercise rights vested in them as servants of a belligerent Govern-
ment, their acts are not to be tried by the standard of munici-
al law.
: This principle is applied in the decision of the Supreme Court of
the United States in Zhe United States vy. Palmer, 3 Wheaton
Rep. 610, where, with reference to the case “ when a civil war
rages in a foreign nation, one part of which separates itself from
the old established Government, and erects itself into a distinct
Government,” the Court laid down the rule, that “if the Govern-
ment of the Union remains neutral, but recognizes the existence of
a civil war, the Courts of the Union cannot consider as criminal
those acts of hostility which war authorises, and which the new Gov-
ernment may direct against its enemy.”
And to the same effect is the dictum of one of the Judges of the
Court of Queen’s Bench in the recent case of the Gerity [where
the prisoners had seized a ship at sea, saying they were acting for
the Confederate Government] “ though the Confederate States are
not recognised as independent, they are recognized as a belligerent
power, and there can be no doubt that parties acting in their behalf
would not be criminally responsible’(12 Week. Rep. 863).
(Signed) H. W. CAIRNS, |
FRANS. REILLY.
Lrncoun’s Inv,
22nd March, 1865.
mntemplation of
r intent having
but really, to
erent Govern-
ard of munici-
reme Court of
er, 3 Wheaton
on a civil war
tes itself from
nto a distinct
f the Govern-
e existence of
ras criminal
the new Gov-
Judges of the
Gerity [where
rere acting for
rate States are
s a belligerent
in their behalf
. 863).
AIRNS,
’. REILLY.
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